Migration Regulations 1994 - Specification of Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Business (Long Stay)) Visas - IMMI 11/042

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Legislation au F2011L01131 Not in force Legislative Instrument

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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 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 classes of applicants who are exempt from the English language proficiency requirement.

 

3.                  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.

 

4.                  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.

 

5.                  Item (1) of the Instrument revokes Instrument number IMMI 10/086, signed by the Minister on 18 January 2011, 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.  

 

6.                  The way of working out the level of salary has been simplified to provide that the level of salary is the 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.

 

7.                  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 or 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.

 

8.                  Paragraph (3)(b) of the previous instrument (IMMI 10/086) is retained in this Instrument (also as 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.

 

9.                  Paragraph 3(c) applies to applicants who are subject to a nomination that was made on or after 1 July 2010 for a specified occupation.

 

10.              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.

 

11.              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. 

 

12.              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 has advised that a Regulatory Impact Statement is not required (OBPR Ref 12611).

 

14. Instrument number IMMI 11/042 commences on 1 July 2011.

 

 

Overview

The Migration Regulations 1994 were enacted to provide a comprehensive framework for the administration of Australia's migration laws, including the regulation of temporary and permanent visas. This legislation aims to ensure that the migration system supports Australia's economic, social, and cultural objectives while facilitating the orderly and efficient movement of people to, from, and within Australia. The specific Instrument, F2011L01131, introduced under the Migration Regulations 1994, addresses the gap in the application of English language requirements for applicants of Subclass 457 (Business (Long Stay)) visas, particularly concerning salary thresholds and exemptions. This regulation, introduced by the Australian government, aims to streamline the visa application process by simplifying the salary calculation method and updating the classes of exempt applicants, thus ensuring the system remains fair and efficient. The policy objective is to facilitate skilled migration while maintaining the integrity of the English language requirement, ensuring that applicants can adequately communicate in English, where necessary, for the benefit of the Australian workforce and society.

Scope and Application

The Migration Regulations 1994, specifically the instrument F2011L01131, outlines the conditions under which applicants for a Subclass 457 (Business (Long Stay)) visa may be exempt from the English language proficiency requirement. This applies to individuals seeking this visa who will be paid an annual salary at or above the specified base salary, which is calculated in accordance with the method prescribed by the Minister. Additionally, certain categories of applicants are exempt from the English language requirement, such as those whose nominated occupation does not require English proficiency, holders of passports from specific countries, and those who have completed at least five years of full-time study in English-speaking institutions. The Instrument specifies that applicants subject to an approved nomination made before 1 July 2010 for specified occupations, as well as those sponsored to work at diplomatic or consular missions or offices of Taiwan authorities in Australia, are also exempt. These regulations apply across Australia and are implemented under the authority of the Migration Act 1958. The instrument revokes a previous instrument, IMMI 10/086, and introduces the Australian and New Zealand Standard Classification of Occupations (ANZSCO) to further define the applicable occupations. The changes introduced by this instrument are effective from 1 July 2011.

Key Provisions

The Migration Regulations 1994, through this specific instrument, primarily establish criteria for exempting certain applicants for a Subclass 457 (Business (Long Stay)) visa from the English language proficiency requirement (paragraph 457.223(6)(a) and subclause 457.223(11)). This exemption is contingent on the applicant's salary level or their classification as an exempt applicant. Specifically, if an applicant is paid a salary at or above the specified threshold, they are exempt from the English language requirement (paragraph 457.223(6)(a)). Additionally, certain classes of applicants are also exempt from this requirement (subclause 457.223(11)). The method for calculating the salary threshold has been simplified to determine the applicant’s base annual salary, which must be equal to or exceed the specified base salary, with certain exclusions. The Act imposes several obligations on the applicants for the Subclass 457 visa. Applicants must ensure their salary meets or exceeds the specified threshold, as outlined in the Instrument, to be exempt from the English language proficiency requirement. They must also verify that they fall within the specified classes of exempt applicants if applicable. Employers sponsoring these applicants must adhere to the salary threshold and ensure their sponsored applicants meet the eligibility criteria. Additionally, the applicants need to provide accurate salary details and other relevant documentation to substantiate their exemption claims. Failure to meet the salary threshold or to provide accurate information can result in consequences for the applicants. If an applicant does not satisfy the English language proficiency requirement due to not meeting the salary threshold, their visa application may be rejected or subject to further scrutiny. Moreover, any fraudulent misrepresentation of salary information can lead to severe consequences. Under Australian law, providing false or misleading information can result in penalties, including fines and imprisonment. The specific penalties for such offences can vary but may include substantial fines and imprisonment terms depending on the severity and intent of the offence.

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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.