Migration Regulations 1994 - Specification of Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Business (Long Stay)) Visas - IMMI 10/086

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EXPLANATORY STATEMENT

Migration Regulations 1994

 

LEVEL OF SALARY AND EXEMPTIONS TO THE ENGLISH LANGUAGE REQUIREMENT FOR SUBCLASS 457 (BUSINESS (LONG STAY)) VISAS

 

(PARAGRAPH 457.223(6)(a) and SUBCLAUSE 457.223(11))

 

  1. This Instrument is made under paragraph 457.223(6)(a) and subclause 457.223(11) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).
     
  2. The Instrument was signed by the Minister for Immigration and Citizenship on 18 January 2011, as an attachment to the Ministerial Submission which accompanied it. Although it is usual for a date to accompany the Minister’s signature, it has been established that the Instrument was signed at the same time as the Minister signed the accompanying submission, and that the absence of a date has no detrimental effect in law.

 

3.                  The purpose of the Instrument is to specify the level of salary an applicant for a Subclass 457 (Business (Long Stay)) visa will be paid in order to be exempt from the English language proficiency requirement at paragraph 457.223(4)(eb) of Schedule 2 to the Regulations. The Instrument also specifies the categories of other applicants who are exempt from the English language proficiency requirement.

 

4.                  Paragraph 457.223(6)(a) of Schedule 2 to the Regulations applies to an applicant for a Subclass 457 (Business (Long Stay)) visa if the applicant will be paid, in connection with the occupation nominated in relation to the applicant, a level of salary that is at least the level of salary worked out in a way specified by the Minister in an instrument in writing for the paragraph.  An applicant who will be paid at or above this level does not have to satisfy the English language proficiency requirement.

 

5.                  Subclause 457.223(11) of Schedule 2 to the Regulations provides that in subclause 457.223(4), exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for subclause 457.223(11).  Applicants who are in the class of applicants specified do not have to satisfy the English language proficiency requirement.

 

6.                  Item (1) of the Instrument revokes Instrument number IMMI 10/029, signed by the Minister on 17 June 2010, in which these matters were previously specified.  Item (2) of the Instrument specifies the way of working out the level of salary for the purposes of paragraph 457.223(6)(a) of the Regulations.  

 

7.                  The way of working out the level of salary has been simplified to provide that the level of salary is an annual salary at a base rate of pay which is equal to or greater than the applicable base salary.  The applicant’s base rate of pay is to be worked out taking into account the exclusions specified in the Instrument.

 

8.                  Item (3) of the Instrument specifies the classes of applicants who are an exempt applicant for the purposes of subclause 457.223(11) of Schedule 2 to the Regulations.  Paragraphs (a), (d) and (e) specify the same classes of applicants that were specified in the previous instrument.  These are: applicants whose nominated occupation does not require English and who are the holder of a passport of certain countries; applicants whose nominated occupation does not require English and who have completed at least five consecutive years of full-time study in a secondary and/or higher eduction institution where the instruction was delivered in English; and certain sponsored applicants who will work at a diplomatic or consular mission of another country or an office of the authorities of Taiwan in Australia.

 

9.                  Paragraph (5)(b) of the previous instrument is retained in this Instrument in paragraph (3)(b), but it applies only to applicants who are subject to a approved nomination which was made before 1 July 2010 for a specified occupation.  These occupations are specified by reference to the ASCO that is defined under regulation 1.03 of the Regulations as the Australian Standard Classification of Occupations, published by the Australian Bureau of Statistics on 31 July 1997.

 

10.              Paragraph (5)(c) applies to applicants who are subject to a nomination that was made on or after 1 July 2010 for a specified occupation.  Although the list appears to be different from the previous instrument there are only limited changes in the occupations specified.  The previous instrument listed every occupation which was to be exempted, and the current instrument neatly details these same occupations using ANZSCO Major Groups, Sub-Major Group or Unit Groups descriptors.  This reflects the operational requirements of the department from 1 July 2010 when the ANZSCO become the accepted descriptor of occupations and most new nominations from that date are required to refer to the relevant occupation by its ANZSCO classification.           

 

11.              The following documents are incorporated in the Instrument by reference:

  • ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  The ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) is available online at http://www.abs.gov.au.
  • ASCO means, under regulation 1.03 of the Regulations, the Australian Standard Classification of Occupations, published by the Australian Bureau of Statistics on 31 July 1997.  The ASCO - Second Edition (ABS Catalogue No. 1220.0) is available online http://www.abs.gov.au.
  • ANZSCO Major Group is the broadest level of ANZSCO, being defined at the 1 digit level.
  • ANZSCO Sub-Major Group is defined at the 2 digit level.
  • ANZSCO Unit Group is defined at the 4 digit level.

 

12.              Affected government departments were consulted on the proposal to introduce the ANZSCO standard into the Department's skilled migration programs.  These included the Australian Bureau of Statistics, the Department of Education, Employment and Workplace Relations and the Department of Infrastructure, Transport, Regional Development and Local Government. 

13.              State and Territory Governments were consulted via the Commonwealth State Working Party on Skilled Migration (CSWPSM).  This included the ACT Chief Minister’s Department, the NSW Department of State and Regional Development, the NT Department of Business and Employment, the Queensland Department of Employment, Economic Development and Innovation, the Tasmanian Department of Economic Development, Tourism and the Arts, and the SA Department of Trade and Economic Development. 

 

13. The Office of Best Practice Regulation was consulted and advised that because changes from ASCO to ANZSCO are a consequence of the new approach adopted by the Australian Bureau of Statistics for classifying occupations, no regulation impact statement or business cost calculator report was required (OBPR reference number 12113).

 

14. Instrument number IMMI 10/086 commences on 15 February 2011.

 

 

Overview

The Migration Regulations 1994, amended in 2011, aim to address the need for clear guidelines on salary levels and exemptions for English language requirements in the context of Subclass 457 (Business (Long Stay)) visas. This legislative instrument was enacted by the Minister for Immigration and Citizenship on 18 January 2011 and serves to specify the salary thresholds that exempt applicants from the English language proficiency requirement. The policy objective is to streamline the application process by setting precise salary levels and defining the categories of applicants exempt from English language requirements, thus facilitating the efficient processing of visa applications while maintaining the integrity of the migration program.

Scope and Application

The Migration Regulations 1994, as amended by this instrument, specifically apply to applicants for a Subclass 457 (Business (Long Stay)) visa. These regulations detail the salary level that exempts applicants from the English language proficiency requirement, as well as the categories of applicants who are exempt from this requirement. The regulations apply across Australia, as they are part of the national framework under the Migration Act 1958. This particular instrument, signed by the Minister for Immigration and Citizenship, focuses on the criteria for salary levels and the categories of exempt applicants, thereby setting the conditions under which certain applicants need not demonstrate English language proficiency. The regulations have been updated to reflect the transition from the Australian Standard Classification of Occupations (ASCO) to the Australian and New Zealand Standard Classification of Occupations (ANZSCO), effective from 1 July 2010. This change has been incorporated to align with the current occupational classification standards. The instrument also includes references to specific occupations as defined by ANZSCO, detailing Major Groups, Sub-Major Groups, and Unit Groups.

Key Provisions

The Migration Regulations 1994, as amended by this instrument, establish specific salary thresholds and exemptions for the English language requirement applicable to applicants for a Subclass 457 (Business (Long Stay)) visa. According to paragraph 457.223(6)(a), an applicant who is paid an annual salary at a base rate equal to or exceeding the specified level does not need to meet the English language proficiency requirement. The salary is determined by a method outlined in the instrument, which has been simplified to consider the applicant's base rate of pay, excluding certain elements. Subclause 457.223(11) further details categories of applicants exempt from the English language requirement, such as those from specific countries, those who have completed a certain period of study in English, and sponsored applicants working in diplomatic or consular missions. The Regulations impose specific obligations on applicants for the Subclass 457 visa. They must ensure their salary meets the specified threshold to be exempt from the English language requirement. Additionally, applicants falling under the specified exempt categories must provide evidence to support their exemption, such as a passport from a listed country or proof of completed study in English. Employers must also ensure that their sponsored applicants meet these salary or exemption criteria before applying for the visa. Compliance with these requirements is essential for the successful application process. Violations of the provisions outlined in the Migration Regulations 1994 may lead to various consequences. For instance, falsely claiming to meet the salary threshold or providing misleading information regarding the exemption categories can result in visa refusal or cancellation. Such actions may also attract civil or criminal penalties, including fines or imprisonment, depending on the severity of the breach. The specific penalties are not detailed in the explanatory statement, but they would typically align with the general provisions of Australian migration law. Non-compliance with these requirements can have significant implications for both applicants and employers.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.