EXPLANATORY STATEMENT

Migration Regulations 1994

1. This Notice Instrument is made under regulation 1.17 and paragraphs 5.19(2)(h) and 5.19(2)(i), subparagraphs 121.211(b)(ii) and 856.213(b)(ii), and sub-subparagraphs 121.211(b)(i)(A)  and 856.213(b)(i)(A) sub-regulations 5.19(2)(h), 5.19(2)(i), 856.213(b)(i)(A), 121.211(b)(i)(A),  856.213(b)(ii) and 121.211(b)(ii) of the Migration Regulations 1994 (‘the Regulations’).

2.                  Regulation 1.17 of the Regulations provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purpose of those provisions. 

1.3.            Regulation 5.19 of the Regulations allows the Minister to approve an application for an employer nominated position as an approved appointment. Relevantly, sets out the criteria for a nominated position to be approved as an approved appointment.  Spub-regulationaragraph 5.19(2)(h) provides that the employer nomination meets the requirements of subregulation 5.19(2) if, among other things, the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in a Gazette Notice in force for subparagraph 5.19(2)(h)(i), the tasks will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for subparagraph 5.19(2)(h)(ii), and the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for paragraph 5.19(2)(i) at the time at which the application for approval of the nominated position is made. tasks of the nominated position must correspond to the tasks of an occupation specified in a Gazette notice and must be carried out in a location specified in a Gazette Notice.  Sub-regulation 5.19(2)(i) provides that the nominated position will pay a salary that is at least the salary specified for the occupation and location in a Gazette Notice.

4S.  Sub-subparagraphsub-regulations 856.213(b)(i)(A) and 121.211(b)(i)(A) and 856.213(b)(i)(A) of the Regulations both provide that applicants for a Employer Nomination (Migrant) (Class AN) Subclass 121 (Employer Nomination) visa subclass 856 (‘Subclass 121 visa’) and a Employer Nomination (Residence) (Class BW) sSubclass 121 856 (Employer Nomination Scheme) visa (‘Subclass 856 visa’) visa respectively, an assessing authority specified by the Minister in a Gazette Notice as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable.

5.  must have had their skills assessed as suitable by an assessing authority specified for the occupation in a Gazette Notice.

Sub-regulations 856.213(b)(ii) and 1121.211(b)(ii) and 856.213(b)(ii) of the Regulations both provide that for a 

Subclass 121 visa and a Subclass 856 visa respectively, the applicant will be paid a salary in the  applicants for subclass 856 and subclass 121 visa respectively must have been nominated for a position that pays at least the amount of salary specified in a Gazette Notice is at least the amount of salary specified in a Gazette Notice.

2.4.            The purpose of the Instrument is to set out the occupations that can be nominated under the Employer Nomination Scheme, the relevant skills assessing authorities for each occupation, the minimum salary levels that apply to each occupation and the location, or locations, in Australia where those salary levels apply.  The Instrument also specifies the relevant skills assessing authority for each occupation and salary level which visa applicants must be paid in a nominated position in order to meet the skill requirements under 856.213(b)(ii) and 121.211(b)(ii).in relation to the Subclass 121 and Subclass 856 visas.  

3.5.            The Iinstrument operates to specify criteria requirements which must be met under subregulation 5.19(2) of the Regulations that must be met in order for a nomination of a position to be approved under regulation 5.19(2) and criteria under clauses 121.211 and 856.213 of the Regulations that must be satisfied for by Subclass 121 and 856 visa visa applicants to meet under 856.213 and 121.211.

6. Pursuant to section 17 of the Legislative Instruments Act 2003, cConsultation was undertaken before the Iinstrument was made as follows:

• The Department of Employment and Workplace Relations was consulted on the constitution of the list of occupations and the salary levels.;
• Trades Recognition Australia (TRA) and Vocational Education and Training Assessment Services (VETASSES) were consulted on the appropriate skill assessing authorities for occupations for which there had previously been no skills assessing authority gazetted under regulation 2.26B; and.
• The NSW Department of State and Regional Development were consulted on the implementation of recommendation 7 of the Commonwealth/NSW Working Party on Migration to Sydney and Regional NSW (regarding the salary levels to apply to positions located in Sydney).

7. The Iinstrument commences on 2 April 2005.