Overview

The Migration Regulations 1994 were enacted to regulate the entry and stay of non-citizens in Australia, addressing gaps in the management of skilled migration and ensuring that temporary business long stay visas are granted based on fair and reasonable terms. The problem this legislation aimed to address was the need to prevent underpayment and exploitation of temporary skilled workers, by establishing a clear and consistent framework for determining the minimum salary levels for certain occupations. This was achieved through the Migration Amendment (Skilled Occupation List) Instrument 2007 (F2007L03586), which was made under the authority of the Migration Act 1958 by the Department of Immigration and Citizenship. The policy objective of this instrument was to refine the list of occupations eligible for nomination under the Subclass 457 visa, redefine certain occupations, clarify the methodology for calculating minimum salary levels, and specify a new minimum salary for applicants exempt from the English language requirement. This legislation was aimed at ensuring that the skilled migration program remains fair and protective of temporary workers’ rights.

Scope and Application

The Migration Regulations 1994, as amended by this instrument, apply to employers and applicants for the Subclass 457 (Business (Long Stay)) visa, particularly focusing on the minimum salary levels and occupations eligible for nomination under this visa category. The regulations specify that the minimum salary to be paid to certain visa holders is as outlined in a Gazette Notice. These regulations also mandate that the tasks of the positions for which applicants are nominated must correspond to occupations listed in a Gazette Notice. Notably, this instrument excludes certain occupations from being nominated under Subclass 457 Standard Business Sponsorship arrangements if they are covered by an industry labour agreement, such as "Supervisor Meat Tradesperson" and "Slaughterperson". Instead, it includes "retail butcher" and "smallgoods maker" roles to cover other skilled meatworker positions not covered by the labour agreement framework. Furthermore, it establishes a new minimum salary level of AUD75,000 for applicants who meet specific exemptions to the English language requirement. The instrument incorporates the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, to aid in defining occupations and calculating salary levels, and it commences on 10 September 2007.

Key Provisions

The Migration Regulations 1994 (the Regulations) have been amended by the F2007L03586 instrument, particularly through regulation 1.20B, subregulation 1.20G(2), and subparagraph 1.20GA(1)(a)(i). Regulation 1.20B sets out that the minimum salary level for certain individuals granted a Subclass 457 (Business Long Stay) visa must align with the salary specified in a Gazette Notice. Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) mandate that the tasks of positions nominated by employers for Subclass 457 visas must correspond to occupations listed in a Gazette Notice for the respective provision. These regulations impose several obligations on employers and applicants for the Subclass 457 visa. Employers must ensure that the roles for which they are nominating visa applicants align with the occupations specified in the Gazette Notice. They must also ensure that the salary offered to the visa applicant meets or exceeds the minimum salary level specified in the Gazette Notice. Visa applicants must demonstrate that their role and salary meet the criteria set by the Regulations. Additionally, employers and applicants need to verify that the role and salary are accurately calculated using the methodology outlined in the Gazette Notice, which includes definitions and illustrative examples provided in the instrument. Breaching the provisions of the Regulations can result in various consequences. Employers who fail to comply with the salary requirements may face penalties under the Migration Act 1958, which can include fines and potential revocation of their sponsorship rights. Visa applicants who are found to be in non-compliance with the salary requirements may have their visa application refused or their visa cancelled if already granted. Civil and criminal penalties may also apply depending on the severity and intent of the breach. The instrument specifies a new minimum salary level of AUD75,000 for applicants who met the 457.223(6) exemption to the English language requirement. This adjustment aims to ensure that the salary requirements are met for those who qualify under this exemption. The methodology for calculating the minimum salary level is also clarified in the instrument, providing employers and visa applicants with a clear framework to follow. The inclusion of illustrative examples further aids in verifying whether the salary paid meets the stipulated minimum level.