Migration Regulations 1994 - Specification of Occupations and Locations - March 2005

Administered by Department of Home Affairs

Legislation au F2005L00806 Not in force Legislative Instrument

Legislation content

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.

 

Overview

The Migration Regulations 1994, as amended by the F2005L00806 Notice, were enacted to address gaps in the regulatory framework governing the Employer Nomination Scheme, which facilitates skilled migration to Australia. This instrument, introduced by the Minister under the authority granted by the Regulations, specifies criteria such as the occupations eligible for nomination, the requisite skills assessment authorities, the minimum salary levels, and the locations within Australia where these salary levels are applicable. The policy objective is to ensure that the nomination of positions and the application for specific subclass visas are aligned with the established criteria. Enacted by the relevant legislature, this instrument operates to formalise the procedural requirements and criteria for employers and applicants to adhere to under the scheme, thereby enhancing the regulation and administration of skilled migration in Australia.

Scope and Application

The Migration Regulations 1994, as amended, apply to all individuals and entities involved in the nomination and employment of foreign workers through the Employer Nomination Scheme, including employers, employees, and visa applicants. This Act specifies the criteria for the approval of nominated positions under regulation 5.19, including the tasks and locations of the nominated positions, and the salary levels that must be met. Furthermore, it outlines the requirements for applicants of Subclass 121 and Subclass 856 visas, mandating that their skills must be assessed as suitable by an authority specified in a Gazette Notice and that they must be paid a salary that meets the specified minimum for their occupation and location. This legislation has a national jurisdictional reach as it is made under the Commonwealth Migration Act 1958. The Act extends its application through subordinate instruments, such as Gazette Notices, which specify occupations, relevant skills assessing authorities, minimum salary levels, and locations within Australia. The Act does not explicitly state any exclusions, exemptions, or thresholds, but it relies on these subordinate instruments to provide detailed criteria and specifications.

Key Provisions

The main sections of this legislation (sections 1.17, 5.19(2)(h), 5.19(2)(i), 856.213(b)(i)(A), 856.213(b)(ii), 121.211(b)(i)(A), 121.211(b)(ii)) detail the criteria for approving applications for employer-nominated positions and visas. Under section 1.17, the Minister is empowered to specify requirements through a notice published in the Gazette. Section 5.19(2)(h) specifies that an employer's nomination for a position must correspond to the tasks of an occupation specified in a Gazette Notice, be carried out in a location specified in a Gazette Notice, and the employee must be paid a salary at least equal to the amount specified in a Gazette Notice for that occupation and location. Section 5.19(2)(i) reiterates the requirement for the salary to meet the specified minimum. Sub-regulations 856.213(b)(i)(A) and 121.211(b)(i)(A) require applicants for a Subclass 121 visa and a Subclass 856 visa to have their skills assessed as suitable by an assessing authority specified in a Gazette Notice for the occupation. Sub-regulations 856.213(b)(ii) and 121.211(b)(ii) mandate that applicants must be nominated for a position that pays a salary at least equal to the amount specified in a Gazette Notice. The obligations imposed on the parties by these sections are primarily administrative and compliance-based. Employers must ensure that the nominated position aligns with the specified occupation and location criteria, and that the salary offered meets the minimum threshold specified in the Gazette Notice. For visa applicants, it is mandatory to have their skills assessed by the appropriate authority as listed in the Gazette Notice and to be nominated for a position that meets the specified salary criteria. Employers and applicants must stay informed about the Gazette Notices to ensure compliance with the latest criteria. Breaches of these provisions may lead to significant consequences. While the specific penalties are not detailed in the provided text, generally, under Australian law, non-compliance with migration regulations can result in penalties such as fines, visa cancellations, or even deportation for individuals, and legal action or fines for employers. These penalties can vary based on the severity and intent of the breach, with more severe breaches potentially leading to higher penalties.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Reporting & Disclosure Obligations
Licensing & Registration
Enforcement Powers
Catchwords
Gazette Notice

Interactions

Authorises

All Versions

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.