EXPLANATORY STATEMENT
Migration Regulations 1994
- This Notice is made under regulation 1.20B, subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Migration Regulations 1994 (‘the Regulations’)
2. Regulation 1.20B defines the minimum salary to be paid to persons seeking to be granted a Subclass 457 (Business (Long Stay)) visa as that specified in a gazette notice. Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i)of the Regulations provide that the tasks of positions for which applicants for subclass 457 visas are nominated by employers correspond to the tasks of an occupation specified in a gazette notice
3. The purpose of the Instrument is to rectify the previous instrument whereby some occupations were inadvertently omitted. This instrument therefore revokes the previous instrument signed on 17 March 2005. Other than including the additional occupations, the instrument addresses identical issues asto those outlinedaddressed in the notice signed on 17 March 2005 which specified specify the minimum salary levels and the list of ooccupations which apply under the above regulations.
4. Section 18 of the Legislative Instruments Act 2003 recognises that, in certain circumstances, the nature of the instrument may be such that consultation may be either unnecessary or inappropriate. As this instrument is minor or machinery in nature and does not substantially change the law, consultation was not undertaken.
4. 54Pursuant to section 17 of the Legislative Instruments Act 2003, consultation was undertaken before the instrument was made, as follows:
The Department of Employment and Workplace Relations was consulted about the appropriate minimum salary level.
The Department of Communications, Information Technology and the Arts was consulted about employment prospects in the information and communications technology sector
5. The instrument commences on 9 April 2005, being the day after the instrument signed on 17 March 2005 commenced. This retrospective commencement does not infringe subsection registration on the Federal Register of Legislative Instruments.12(2) of the Legislation Instruments Act 2003 as it will operate beneficially in respect of all affected persons by including occupations previously omitted.
Overview
The Migration Regulations 1994 were amended in 2005 to address the omission of certain occupations that qualified for a Subclass 457 (Business (Long Stay)) visa. This legislative adjustment was introduced to ensure that all eligible occupations were correctly identified and that the appropriate minimum salary levels were specified. The policy objective behind this revision was to rectify an oversight in the original regulations, thereby ensuring that the visa application process was fair and comprehensive. The instrument was made under the authority of the Legislative Instruments Act 2005, which allows for minor or machinery changes that do not substantially alter the law, thus bypassing the need for formal consultation. Despite this, consultations were conducted with relevant departments to determine appropriate salary levels and employment prospects. The amendment commenced on 9 April 2005, retroactively effective from the original commencement date to ensure all affected parties benefited from the correction.
Scope and Application
The Migration Regulations 1994, as amended by this Notice, apply to persons seeking to be granted a Subclass 457 (Business (Long Stay)) visa. Specifically, the regulations define the minimum salary that must be paid to these applicants and the tasks associated with the occupations for which they are nominated, as specified in a gazette notice. The regulations also include a list of occupations covered by the provisions, with the purpose of this Notice being to correct previous oversights by including additional occupations that were inadvertently omitted from the initial regulations. This Notice operates at a Commonwealth level, with its reach extending across Australia as it pertains to federal immigration law. The instrument does not substantially change the law but rather rectifies previous omissions, justifying the absence of broader consultation as per Section 18 of the Legislative Instruments Act 2003. The instrument commenced on 9 April 2005, the day after the previous instrument signed on 17 March 2005, and applies retrospectively to benefit all affected persons by including previously omitted occupations.
Key Provisions
The Migration Regulations 1994 (Regulation 1.20B) establish the minimum salary that must be offered to individuals applying for a Subclass 457 (Business (Long Stay)) visa, as detailed in a gazette notice. This requirement ensures that applicants meet a specific financial threshold, which is periodically updated. Additionally, Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) stipulate that the job roles for which applicants are nominated must align with those specified in a gazette notice, ensuring that the positions are relevant and properly classified.
Under this legislation, employers have the obligation to ensure that the roles they nominate for Subclass 457 visa applicants correspond precisely to the occupations listed in the gazette notice. This includes verifying that the tasks associated with the nominated positions match those outlined for specific occupations. Employers must also adhere to the minimum salary requirements specified in the gazette notice to be eligible for the visa.
Failure to comply with these regulations can lead to significant consequences. Employers who do not meet the minimum salary requirements or who misclassify the roles of applicants can face penalties. While the specific penalties are not detailed in the Explanatory Statement, breaches of the Migration Regulations can generally result in civil or criminal penalties, including fines and potential visa cancellations. The severity of the penalty often depends on the nature and extent of the breach, as well as any previous history of non-compliance.