EXPLANATORY STATEMENT
Migration Regulations 1994
SPECIFICATION OF OCCUPATIONS
(SUBPARAGRAPHS 2.72(10)(a) and 2.72I(5)(b))
- This Instrument is made under subparagraphs 2.72(10)(a) and 2.72I(5)(b) of the Migration Regulations 1994 (‘the Regulations’).
2. Regulations 2.72 and 2.72I of the Regulations set 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 and a Subclass 442 (Occupational Trainee) visa, respectively.
3. Paragraph 2.72(10)(a) provides that if the person is a standard business sponsor, the Minister must be satisfied that the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for that paragraph. The purpose of this provision is to ensure that only applicants who have a particular skilled occupation are able to be nominated for a Subclass 457 (Business (Long Stay)) visa.
4. Regulation 2.72I applies to a person who is an occupational trainee sponsor who has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 442 (Occupational Trainee) visa. This provision specifies the criteria that the occupational training must meet for a nomination to be approved.
5. Subparagraph 2.72I(5)(b) relates to occupational training to enhance skills and provides that the nominated occupational training is in relation to an occupation specified by the Minister in an instrument in writing for that paragraph.
6. The Instrument operates to specify the occupations which can be nominated under the Subclass 457 (Business (Long Stay)) visa arrangements. It also operates to specify the occupations that occupational training must relate to for occupational training which is to enhance the skills of the holder of, applicant or proposed applicant for a Subclass 442 (Occupational Trainee) visa.
7. The following document is incorporated in the Instrument by reference:
- Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, available at http://www.abs.gov.au/AUSSTATS
8. The Regulations under which this instrument is made were developed in consultation with:
- a selection of industry peak bodies, unions, and State Governments through the Skilled Migration Consultative Panel;
- Department of Foreign Affairs and Trade;
- Department of Education, Employment and Workplace Relations;
- the Treasury;
- Attorney General’s Department;
- Australian Taxation Office;
- Migration Review Tribunal;
- the Office of the Privacy Commissioner; and
- the Attorney General’s Department.
9. The Instrument, IMMI 09/094, commences on 14 September 2009.
Overview
The Migration Regulations 1994 were enacted to govern the administration of Australia's migration system, ensuring that visa applicants meet the required standards and criteria. This legislation was introduced to address the need for a structured and regulated framework governing the nomination and approval processes for specific occupations under the Subclass 457 (Business (Long Stay)) and Subclass 442 (Occupational Trainee) visas. The enacting body for these regulations is the Parliament of Australia, and the policy objective is to facilitate the entry of skilled individuals into Australia while ensuring that their occupations are aligned with national skill requirements. This instrument, made under subparagraphs 2.72(10)(a) and 2.72I(5)(b) of the Regulations, specifies the occupations that can be nominated for these visas, ensuring that only applicants with particular skilled occupations are eligible and that occupational training aligns with specified skill needs.
Scope and Application
The instrument modifies the Migration Regulations 1994 to specify the occupations eligible for nomination under the Subclass 457 (Business (Long Stay)) visa and the occupational training required for a Subclass 442 (Occupational Trainee) visa. It applies to applicants or proposed applicants for these visas, their sponsors, and those seeking to nominate occupations for these visa types. The legislation is administered by the Minister for Immigration and Citizenship, who must be satisfied that the nominated occupation aligns with those specified by the Minister in writing, ensuring that only individuals with specific skilled occupations can be nominated for these visas. This regulation aims to control and direct skilled migration into Australia, aligning with the broader objectives of the Migration Act 1958 and its associated regulations. The geographic reach of this legislation is national, applying across Australia, as it is part of the Commonwealth’s regulatory framework. There are no stated exclusions or exemptions within the text provided, and thresholds for application are determined by the criteria set out in the Migration Regulations 1994. Subordinate instruments may further define specific occupations or training programs.
Key Provisions
The main operative sections of this legislation pertain to the Migration Regulations 1994, specifically focusing on regulations 2.72 and 2.72I. Regulation 2.72 outlines the criteria for approving a nomination for a Subclass 457 (Business (Long Stay)) visa, ensuring that the nominated occupation is one specified by the Minister (subsection 2.72(10)(a)). Similarly, regulation 2.72I specifies the criteria for approving occupational training for a Subclass 442 (Occupational Trainee) visa, ensuring the training relates to an occupation specified by the Minister (subsection 2.72I(5)(b)). This regulatory framework ensures that only applicants with specified skilled occupations or relevant occupational training can be nominated for the respective visas.
The Act imposes several obligations on parties involved in the nomination process for these visas. For Subclass 457 visa nominations, standard business sponsors must ensure the nominated occupation matches those specified by the Minister. This is to maintain the integrity of the visa category, ensuring it is only used for skilled occupations. For Subclass 442 visa nominations, occupational trainee sponsors must ensure that the nominated occupational training is related to an occupation specified by the Minister, aimed at enhancing the skills of the visa holder or applicant. These obligations are designed to maintain the quality and relevance of the training provided under the visa arrangements.
Breaches of the provisions in the Act may result in serious consequences. If an incorrect occupation is nominated for a Subclass 457 visa, the nomination may be refused, potentially preventing the visa applicant from entering Australia. Similarly, if the occupational training for a Subclass 442 visa does not meet the specified criteria, the nomination may also be refused. While the Act does not specify criminal or civil penalties, the primary consequence is the denial of the visa application, which can have significant implications for the applicant's plans to enter and work in Australia. The emphasis is on maintaining the integrity and purpose of the visa categories through stringent nomination criteria.