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 must be paid at or above 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.

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 09/118, signed by the Minister on 10 October 2009, 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 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. The applicable base salary has been indexed upward from $81,040 to $85,090, in line with movements in the seasonally adjusted annual wage change for all Australians that is currently 5% according to the Australian Bureau of Statistics Average Weekly Earnings data.

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 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.

8.                  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.

9.                  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.  These occupations are set on in the Schedule to the Instrument and are specified by reference to the ANZSCO that is defined under regulation 1.03 of the Regulations as the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  There are no changes in the occupations specified, except for specifying the equivalent ASCO descriptor as the relevant ANZSCO classification.  This reflects the operational requirements of the department from 1 July 2010 when the ANZSCO will become the accepted descriptor of occupations and most new nominations from that date will be required to refer to the relevant occupation by its ANZSCO classification.           

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.

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 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.

14. Instrument number IMMI 10/029 commences on 1 July 2010.