Overview

The Migration Regulations 1994, as amended by F2007L04062, address the need to clarify and update the methodology for calculating the minimum salary levels required for applicants of a Subclass 457 (Business Long Stay) visa. This legislative instrument was enacted to provide a definitive framework for determining the salary thresholds necessary to meet visa requirements, thereby ensuring that employers and visa holders have a clear understanding of the financial obligations involved. The explanatory statement indicates that this regulation aims to refine the existing methodology by incorporating a salary formula, providing further definitions, and updating illustrative examples to facilitate better compliance and understanding. The policy objective is to maintain an effective and transparent system for assessing the salary levels required for the specified visa subclass, ultimately aimed at ensuring that the visa conditions are met and enforced correctly. The instrument incorporates the Australian Standard Classification of Occupations (ASCO) by reference, which aids in the accurate classification of occupations and associated salary levels.

Scope and Application

The Migration Regulations 1994, as amended by this instrument, pertain to individuals who are applying for a Subclass 457 (Business (Long Stay)) visa. The regulations specifically define the minimum salary levels that must be met for such visa applicants and establish the methodology for calculating these salaries using a specified formula. These regulations apply to employers nominating applicants for these visas, ensuring that the positions correspond to occupations outlined in a Gazette Notice. The instrument incorporates the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, to assist in categorising relevant occupations. The regulations have a nationwide jurisdictional reach within Australia and do not specify any exclusions or exemptions. However, the application of these regulations may be further detailed or adjusted through subordinate instruments as necessary. The instrument aims to update and clarify the salary calculation methodology and simplify illustrative examples to facilitate better understanding for both employers and visa holders.

Key Provisions

The Migration Regulations 1994 (the Regulations) contain specific provisions regarding the minimum salary levels for certain persons granted a Subclass 457 (Business Long Stay) visa, as outlined in regulation 1.20B (1). This regulation stipulates that the minimum salary level to be paid to these individuals is as specified in a Gazette Notice. Furthermore, subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Regulations establish that the tasks of positions for which applicants for Subclass 457 visas are nominated by employers must correspond to the tasks of an occupation specified in a Gazette Notice for the relevant provision (2). The obligations imposed by the Act on employers and visa holders are primarily centred around ensuring that the salary paid to the visa holder meets the specified minimum salary level. Employers must ensure that the tasks for which the visa applicant is nominated match those specified in a Gazette Notice (2). Visa holders must also ensure that the salary they receive meets the minimum salary level set out in the Gazette Notice (1). The Regulations provide a methodology for calculating the minimum salary level using a salary formula, definitions and illustrative examples to assist employers and visa holders in determining whether the salary meets the required minimum (3, 4). Breaches of the Regulations may result in a variety of civil and criminal consequences. Although the specific penalties for breaches are not outlined in the explanatory statement, it is worth noting that the Migration Act 1958 (Cth) (the Act) provides for various penalties for breaches of visa conditions and other provisions of the Act. These may include fines, imprisonment, or both, depending on the nature and severity of the breach (not explicitly mentioned in the explanatory statement). It is also important to note that the Legislative Instruments Act 2003 provides that consultation was not necessary for the creation of this Instrument, as outlined in section 18 of the Act (6). The purpose of this Instrument, IMMI 07/078, is to update and clarify the methodology for calculating the level of salary for the purposes of defining the minimum salary level, as well as to update and simplify the illustrative examples to assist employers and visa holders in determining whether or not the level of salary paid to the visa holder is at least the minimum salary level (4). This Instrument incorporates by reference the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, which is available at http://www.abs.gov.au/AUSSTATS (5). The Instrument commences on the day after registration on the Federal Register of Legislative Instruments (7).