Migration Regulations 1994 - Specification of Level of Salary and Exemptions to the English Language Requirements for Subclass 457 (Business (Long Stay)) Visas - IMMI 10/029

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Legislation au F2010L01409 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 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.

 

 

Overview

The Migration Regulations 1994 were enacted to provide a regulatory framework for the administration of the Migration Act 1958. The instrument F2010L01409, made under the authority of the Migration Regulations 1994, was introduced to address the need for specifying salary thresholds and exemptions to English language requirements for applicants of a Subclass 457 (Business (Long Stay)) visa. This instrument was enacted by the Minister for Immigration and Citizenship and aims to streamline the process by which applicants can be exempt from certain language requirements based on their salary and other criteria. The instrument revises the method for calculating the required salary threshold and updates the categories of applicants exempt from English language requirements, reflecting changes in occupational classifications and salary indices.

Scope and Application

The Migration Regulations 1994 Instrument sets out specific conditions under which applicants for a Subclass 457 (Business (Long Stay)) visa are exempt from the English language proficiency requirement. This regulation applies to applicants for this visa who will be paid an annual salary at a base rate of pay equal to or greater than $85,090, as determined in accordance with the method specified by the Minister. Additionally, certain categories of applicants are exempt from the English language requirement, including those whose nominated occupations do not require English and who hold a passport from specified countries, those who have completed at least five consecutive years of full-time study in English-medium instruction, and certain sponsored applicants working at diplomatic or consular missions or offices of Taiwan authorities in Australia. The Instrument also refers to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for specifying exempted occupations, replacing the previous Australian Standard Classification of Occupations (ASCO). The application of this Instrument is national, as it is made under the Migration Regulations 1994, which are Commonwealth regulations. This regulation came into effect on 1 July 2010.

Key Provisions

The primary sections of the legislation, the Migration Regulations 1994, outline specific salary levels and exemptions to the English language requirement for applicants seeking a Subclass 457 (Business (Long Stay)) visa (paragraph 457.223(6)(a) and subclause 457.223(11)). The regulations specify that an applicant who is paid an annual salary at or above the applicable base salary, which has been indexed to $85,090, is exempt from the English language proficiency requirement. The applicable base salary is determined by taking into account certain exclusions and is subject to annual adjustments in line with the seasonally adjusted annual wage change for all Australians. Additionally, the regulations specify categories of applicants who are exempt from the English language requirement, such as those from certain countries whose nominated occupations do not require English proficiency or those who have completed at least five consecutive years of full-time study in English. The regulations impose obligations on applicants for the Subclass 457 visa, requiring them to meet the specified salary threshold or fall within the exempt categories to be exempt from the English language proficiency requirement. This includes ensuring that their base rate of pay is calculated correctly, considering the exclusions specified in the regulations. Furthermore, employers nominating applicants for this visa must ensure that the nominated occupation does not require English proficiency if the applicant is from a specified country or has completed a certain level of study in English. For applicants who are subject to an approved nomination, the regulations specify the occupations that qualify for exemption based on the Australian Standard Classification of Occupations (ASCO) or the Australian and New Zealand Standard Classification of Occupations (ANZSCO). Breaches of these regulations can lead to serious consequences, including the potential refusal of a visa application or revocation of an existing visa. The regulations do not explicitly state the maximum penalties for non-compliance; however, under the Migration Act 1958, penalties for visa fraud or misrepresentation can include substantial fines and imprisonment. The exact penalties depend on the nature and severity of the breach, with the potential for significant civil and criminal consequences for both the applicant and the employer. Compliance with the salary and exemption requirements is critical to avoid these repercussions.

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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.