Overview

The Migration Regulations 1994, as specified in the legislative instrument F2015L00569, address the need to streamline the temporary skilled migration process for the Subclass 457 (Temporary Work (Skilled)) Visa programme by adjusting the income thresholds. Enacted by the Australian Government under the authority of the Migration Act 1958, the legislative instrument responds to recommendations from the 457 Integrity Review to enhance the flexibility for businesses to hire skilled overseas employees without excessive administrative burdens. Specifically, it reduces the annual earnings threshold from AUD250,000 to AUD180,000, facilitating easier sponsorship for employers of highly paid, skilled workers who are not readily replaceable by local talent. The policy objective is to alleviate bureaucratic constraints on businesses, thereby promoting the efficient employment of skilled migrants. The instrument is subject to disallowance and has been assessed for compatibility with human rights, with no adverse implications identified.

Scope and Application

The Migration Regulations 1994 (Instrument) specifies the temporary skilled migration income threshold and annual earnings in relation to the Subclass 457 (Temporary Work (Skilled)) Visa programme. The Instrument applies to standard business sponsors of a primary sponsored person, who are seeking to lodge a nomination for an occupation or have lodged a nomination prior to the Instrument's commencement but have not had it finally determined. The Instrument specifies the annual earnings threshold at AUD 180,000 and retains the temporary skilled migration income threshold at AUD 53,900. The Instrument came into operation following an independent review of the Subclass 457 Programme, the 457 Integrity Review, which recommended amending the threshold annual earnings amount to improve the flexibility with which businesses can employ skilled and desirable employees. This Instrument is subject to disallowance under section 42 of the Legislative Instruments Act 2003, and a Statement of Compatibility has been provided. The purpose of the Instrument is to decrease the salary level exemption that requires approved sponsors in the 457 programme to demonstrate that the nominated salary of a visa holder is the market rate for that occupation. The exemption will be amended from AUD 250,000 to AUD 180,000, which will have the effect of meaning that any application for nomination of an overseas worker with a salary above AUD 180,000 will not have to provide market salary rate evidence. The Instrument is compatible with human rights and does not raise any human rights issues.

Key Provisions

The key provisions of this legislative instrument primarily revolve around the temporary skilled migration income threshold and annual earnings for the Subclass 457 (Temporary Work (Skilled)) Visa program (paragraphs 2.72(10)(cc) and 2.79(1A)(b) and subregulation 2.72(10AB)). This instrument specifies that the temporary skilled migration income threshold is set at AUD 53,900, meaning that for a standard business sponsor to successfully nominate a skilled worker, the base rate of pay for an Australian citizen or permanent resident performing equivalent work at the same location must be greater than this threshold (paragraph 2.72(10)(cc)). Additionally, the terms and conditions of employment for the applicant must be no less favourable than those of an Australian citizen or permanent resident in the same occupation and location (paragraph 2.72(10)(c)). However, these conditions do not apply if the visa applicant’s annual earnings are equal to or greater than AUD 180,000 (subregulation 2.72(10AB)). In terms of obligations, the Act imposes certain conditions on standard business sponsors in the Subclass 457 visa program. They must ensure that the nominated skilled worker's salary is competitive with what Australian citizens or permanent residents would earn for equivalent work at the same location, unless the worker's annual earnings meet or exceed AUD 180,000. This is intended to protect local workers and ensure fair employment practices. Furthermore, under paragraph 2.79(1A)(b), if the primary sponsored person’s annual earnings are equal to or greater than AUD 180,000, the sponsor is exempt from ensuring that the terms and conditions of employment for the sponsored person are no less favourable than those of an Australian citizen or permanent resident performing equivalent work in the same location (subregulation 2.79(2)). Failure to comply with the requirements outlined in this instrument may result in serious consequences. Although the specific penalties are not detailed in the instrument, breaches of the Migration Regulations 1994 generally attract significant fines and other penalties under the Migration Act 1958. For example, failure to comply with the terms of nomination or sponsorship can result in substantial financial penalties, and in severe cases, criminal charges may be pursued against the sponsor. Additionally, non-compliance may lead to the refusal or cancellation of visas, deportation of the sponsored person, and potential bans on future applications, thereby severely impacting both the sponsor's business operations and the sponsored individual's immigration status.