Overview

The Migration Regulations 1994, amended through Instrument F2006L01225, addresses the problem of ensuring that nominated positions under the Employer Nomination Scheme meet certain criteria regarding occupations, salaries, and assessing authorities. This regulation was introduced to provide clarity and ensure that the nominated positions correspond to specific occupations and locations, and that the salaries offered meet specified minimum levels. It also mandates that the skills of applicants for certain visas are assessed by specified authorities and that they are paid a salary at least equal to the minimum specified level. The objective of this regulation is to maintain the integrity of the Employer Nomination Scheme by aligning it with current wage movements and ensuring that the nominated positions are reflective of highly skilled roles, particularly for senior manager positions that may not require skills assessments. The policy objective is to keep the minimum salary levels indicative of skilled positions, thereby maintaining the value and purpose of the visa scheme. This regulation was enacted by the relevant legislature under the authority of the Migration Regulations 1994, with consultation from the Department of Employment and Workplace Relations to ensure the accuracy and relevance of the listed occupations and salary levels.

Scope and Application

The Explanatory Statement outlines the scope and application of the specified regulations under the Migration Regulations 1994. The regulations apply to occupations, locations, salaries, and relevant assessing authorities for the Employer Nomination Scheme. They pertain to individuals and entities involved in nominating candidates for skilled positions through the Employer Nomination Scheme, including employers and prospective employees. The regulations dictate that nominated positions must correspond to occupations and locations specified in a Gazette Notice and must pay a salary that meets the specified minimum levels. Additionally, applicants for subclass 856 and subclass 121 visas must have their skills assessed by a relevant authority specified in a Gazette Notice and be nominated for a position that meets the minimum salary requirements. These regulations extend their reach across Australia, with specified minimum salary levels applicable to different locations within the country. The Instrument also sets out the occupations that can be nominated under the scheme, the relevant assessing authorities for each occupation, and the minimum salary levels that apply to each occupation and location in Australia. The application of these regulations can be extended or restricted through subordinate instruments, ensuring that the specified minimum salary levels remain reflective of the salaries for skilled positions.

Key Provisions

The key provisions of this legislation primarily concern the occupations eligible for nomination under the Employer Nomination Scheme, the relevant skills assessing authorities, the specified minimum salary levels, and the applicable locations within Australia. Regulation 5.19(2)(h) requires that the tasks of the nominated position must correspond to the tasks of an occupation specified in a Gazette Notice and must be carried out in a location specified in the same Gazette Notice (s.2). Additionally, under Regulation 5.19(2)(i), the nominated position must pay a salary that meets or exceeds the specified amount for that occupation and location, as outlined in a Gazette Notice (s.2). These regulations impose several obligations on the parties involved. Employers seeking to nominate a position under the Employer Nomination Scheme must ensure that the nominated occupation and location align with those specified in the Gazette Notice. Furthermore, the salary offered must be at least the minimum level specified for the occupation and location (s.2). For applicants seeking subclass 856 and subclass 121 visas, they must have their skills assessed by the relevant assessing authority specified for their occupation in a Gazette Notice, as per sub-subparagraphs 856.213(b)(i)(A) and 121.211(b)(i)(A) (s.3). Moreover, the nominated position must pay a salary that meets or exceeds the specified minimum level for the respective subclass, as outlined in a Gazette Notice (s.3). Failure to comply with the provisions of these regulations can result in various civil and criminal consequences. Although specific penalties are not detailed within the text, breaches of the Migration Regulations 1994 can generally lead to sanctions such as fines, imprisonment, or both. The exact penalties would depend on the nature and severity of the breach, as determined by the relevant authorities. The overarching aim of these regulations is to maintain the integrity of the Employer Nomination Scheme by ensuring that nominated positions and applicants meet the specified criteria, thus protecting the interests of both employers and skilled migrants.