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.                  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.

3.                  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.

4.                  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.

5.                  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.

6.                  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 education 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.

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

8.                  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.

9.                  Consultation was not necessary as, under section 18(1) of the Legislative Instruments Act 2003, the Instrument is of a minor or machinery nature and does not substantially alter existing arrangements.

10.              The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 12611).

11.              Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.

12.              Instrument number IMMI 12/048 commences on 1 July 2012 immediately after the commencement of the Migration Amendment Regulation 2012 (No. 2).