Migration Regulations 1994 - Specification of Occupations for Nominations in Relation to Subclass 457 (Business (Long Stay)) and Subclass 442 (Occupational Trainee) Visas - IMMI 10/032

Administered by Department of Home Affairs

Legislation au F2010L01414 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

 

 

SPECIFICATION OF OCCUPATIONS FOR NOMINATIONS IN RELATION TO
SUBCLASS 457 (BUSINESS (LONG STAY)) AND
SUBCLASS 442 (OCCUPATIONAL TRAINEE) VISAS

 

(PARAGRAPHS 2.72(10)(aa) and 2.72I(5)(ba))

 

  1. This Instrument is made under paragraphs 2.72(10)(aa) and 2.72I(5)(ba) of Division 2.17 of Part 2A of the Migration Regulations 1994 (‘the Regulations’), inserted in the Regulations on 1 July 2010 by the Migration Amendment Regulations 2010 (No. 6 ).

 

2.                  Regulation 2.72 of the Regulations sets out the criteria for approval of a nomination in relation to the holder of, or an applicant or proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.  Regulation 2.72I of the Regulations sets out the criteria for approval of a nomination in relation to a holder of, or an applicant or proposed applicant for, a Subclass 442 (Occupational Trainee) visa.

 

3.                  Paragraph 2.72(10)(aa) of the Regulations provides that for standard business sponsors who make nominations in relation to Subclass 457 (Business (Long Stay)) visas on or after 1 July 2010, the Minister must be satisfied that the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for the paragraph.  The purpose of this provision is to provide that persons seeking to satisfy the criteria for approval of a nomination for a Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 must include in the nomination the name of the occupation, and the corresponding 6-digit code (if any) specified and include the location or locations at which the nominated occupation is to be carried out.

 

4.                  Paragraph 2.72I(5)(ba) of the Regulations provides that for occupational trainee sponsors who make nominations in relation to Subclass 442 (Occupational Trainee) visas on or after 1 July 2010, the Minister must be satisfied that the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for the paragraph. 

 

5.                  Item (1) of the Instrument specifies occupations for the purposes of paragraph 2.72(10)(aa) of the Regulations as the occupations listed in Schedule 1 to the Instrument.  Item (2) of the Instrument specifies occupations for the purposes of paragraph 2.72I(5)(ba) of the Regulations as the occupations listed in Schedule 1 to the Instrument, and, in addition, the occupation set out in Schedule 2 to the Instrument.  Schedules 1 and 2 to the Instrument also specify the corresponding 6-digit code for each relevant occupation.  This code is listed in accordance with the ANZSCO (the Australian and New Zealand Standard Classification of Occupations).

 

6.                  The specified occupations are unchanged from those in Instrument number IMMI 09/125 signed by the Minister on 22 October 2009, for the purposes of paragraphs 2.72(10)(a) and 2.72I(5)(b) of the Regulations.  The only difference is that occupations are specified in Instrument number IMMI 09/125 generally with reference to the relevant code in accordance with the ASCO (the Australian Standard Classification of Occupations).

 

7.                  Paragraphs 2.72(10)(a) and 2.72I(5)(b) of the Regulations, and consequently Instrument number IMMI 09/125, continue to apply in respect of nominations made prior to 1 July 2010.  Paragraphs 2.72(10)(aa) and 2.72I(5)(ba) and this Instrument number IMMI 10/032 apply in respect of nominations made on and after 1 July 2010.  This reflects the operational requirements of the Department of Immigration and Citizenship from 1 July 2010 when the ANZSCO, rather than the ASCO, will become the accepted descriptor of occupations.  New nominations from that date will be required to nominate an occupation with its corresponding 6-digit ANZSCO code.

 

8.                  The following document is incorporated in the Instrument by reference:

  • ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  The ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) is available online at http://www.abs.gov.au.

 

9.                  Affected government departments and agencies were consulted on the proposal to introduce the ANZSCO standard into the Department's skilled migration programs.  These included the Australian Bureau of Statistics, the Department of Education, Employment and Workplace Relations, and the Department of Infrastructure, Transport, Regional Development and Local Government. 

 

10.              State and Territory Governments were consulted via the Commonwealth State Working Party on Skilled Migration (CSWPSM).  This included the ACT Chief Minister’s Department, the NSW Department of State and Regional Development, the NT Department of Business and Employment, the Queensland Department of Employment, Economic Development and Innovation, the Tasmanian Department of Economic Development, Tourism and the Arts, and the SA Department of Trade and Economic Development. 

 

11.              The Office of Best Practice Regulation was consulted and advised that because changes from ASCO to ANZSCO are a consequence of the new approach adopted by the Australian Bureau of Statistics for classifying occupations, no regulation impact statement or business cost calculator report was required.

 

12. This Instrument number IMMI 10/032 commences on 1 July 2010, immediately after the commencement of Migration Amendment Regulations 2010 (No. 6).

Overview

The Migration Regulations 1994 were enacted to regulate various aspects of migration and visa applications in Australia. The explanatory statement for the SPECIFICATION OF OCCUPATIONS FOR NOMINATIONS IN RELATION TO SUBCLASS 457 (BUSINESS (LONG STAY)) AND SUBCLASS 442 (OCCUPATIONAL TRAINEE) VISAS, which was introduced on 1 July 2010, aims to ensure that specific occupations and their corresponding ANZSCO codes are used in visa nominations for the Subclass 457 and Subclass 442 visas. This change was necessitated by the shift from the Australian Standard Classification of Occupations (ASCO) to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as the accepted descriptor of occupations from that date. The policy objective is to align the visa nomination process with the updated occupational classification standards, ensuring consistency and accuracy in the identification and nomination of occupations. This was achieved through consultation with relevant government departments and agencies, including the Australian Bureau of Statistics and State and Territory Governments.

Scope and Application

The Migration Regulations 1994 specify the occupations eligible for nomination under Subclass 457 (Business (Long Stay)) and Subclass 442 (Occupational Trainee) visas, effective from 1 July 2010. For Subclass 457 visas, the Minister must be satisfied that the nominated occupation and its corresponding 6-digit code match those specified in the Instrument for paragraph 2.72(10)(aa) of the Regulations. This applies to nominations made on or after 1 July 2010 and requires the inclusion of the occupation name and its 6-digit ANZSCO code. For Subclass 442 visas, paragraph 2.72I(5)(ba) mandates that the nominated occupational training must correspond to an occupation specified in the Instrument for paragraph 2.72I(5)(ba). This applies to nominations made on or after the same date and necessitates the inclusion of the relevant occupational training and its 6-digit ANZSCO code. These provisions ensure that occupations are specified according to the ANZSCO, which replaced the ASCO from 1 July 2010, thus aligning with the Australian Bureau of Statistics' updated classification of occupations.

Key Provisions

The Migration Regulations 1994, as amended, detail the criteria for visa nominations under specific subclasses, particularly the Subclass 457 (Business Long Stay) and Subclass 442 (Occupational Trainee) visas. Regulation 2.72 pertains to the approval criteria for Subclass 457 visa nominations, while Regulation 2.72I deals with the Subclass 442 visa nominations. The Instrument specifies occupations for nominations under these regulations, requiring the Minister to be satisfied that the nominated occupations correspond to those listed in the Instrument, which is based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO). For Subclass 457 nominations made on or after 1 July 2010, the Instrument requires the inclusion of the occupation name and its 6-digit ANZSCO code, as well as the location where the occupation will be performed (Regulation 2.72(10)(aa)). For Subclass 442 nominations made on or after the same date, the nominated occupational training must relate to an occupation specified in the Instrument, with its corresponding ANZSCO code (Regulation 2.72I(5)(ba)). The obligations imposed by the Act include the requirement for sponsors to nominate occupations that align with those specified in the Instrument. This means that sponsors must ensure that the nominated occupation and its corresponding ANZSCO code are correctly identified and included in the nomination form. This requirement applies to both Subclass 457 and Subclass 442 visa nominations made on or after 1 July 2010. Sponsors must also provide the location where the nominated occupation will be performed for Subclass 457 nominations. Failure to comply with these specifications may result in the nomination being rejected by the Minister. Breaches of the provisions outlined in the Instrument may have legal consequences. While the specific penalties for non-compliance are not detailed in the explanatory statement, violations of the Migration Regulations 1994 can generally lead to administrative penalties, including fines and potential cancellation of visa nominations. Additionally, repeated or serious breaches could result in more severe penalties under the Migration Act 1958, such as criminal charges and imprisonment. The exact penalties depend on the nature and severity of the breach, as well as any relevant case law or administrative decisions.

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