EXPLANATORY STATEMENT
Migration Regulations 1994
OCCUPATIONS, LOCATIONS, SALARIES, AND RELEVANT ASSESSING AUTHORITIES FOR THE EMPLOYER NOMINATION SCHEME
(REGULATIONS 5.19(2)(h) AND (i), 121.211(b), AND 856.213(b))
- This Instrument is made under regulation 1.17, paragraph 5.19(2)(i) and subparagraphs 5.19(2)(h)(i) and (ii) of the Migration Regulations 1994 (‘the Regulations’), and subparagraphs 121.211(b)(ii) and 856.213(b)(ii), and sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A), of Schedule 2 to the Regulations.
2. Regulation 1.17 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 purposes of those provisions.
3. Regulation 5.19 allows the employer to apply for a nominated position to be approved as an approved appointment. Subparagraph 5.19(2)(h)(i) provides that the tasks of the nominated position must correspond to the tasks of an occupation specified in a Gazette Notice for that subparagraph, and subparagraph 5.19(2)(h)(ii) provides that those tasks must be carried out in a location specified in a Gazette Notice for that subparagraph. Paragraph 5.19(2)(i) provides that the employee in the nominated position will be paid a salary that is at least the salary specified for the relevant occupation and location in a Gazette Notice for this paragraph.
4. Sub-subparagraphs 856.213(b)(i)(A) and 121.211(b)(i)(A) provide that applicants for subclass 856 and subclass 121 visas respectively must have had their skills assessed as suitable by an assessing authority specified for the relevant occupation in a Gazette Notice for the relevant sub-subparagraphs.
5. Subparagraphs 856.213(b)(ii) and 121.211(b)(ii) provide that applicants for subclass 856 and subclass 121 visas respectively will be paid a salary in their nominated position that is at least the amount of salary specified in a Gazette Notice for the relevant subparagraph.
6. The purpose of this Instrument is to set out the details relating to requirements to be met for approval of a nominated position for the Employer Nomination Scheme.
7. The Instrument operates to specify the occupations that tasks of a nominated position may correspond to, where those tasks may be carried out, which skills assessing authorities are responsible for determining whether an applicant has skills that are satisfactory for specified skilled occupations, and to specify minimum salary levels that must be paid to an employee in a nominated position.
8. The following documents are incorporated in the instrument by reference:
- The Australian Standard Classification of Occupations (Second Edition) (ABS Catalogue No. 1220.0), available online from the Australian Bureau of Statistics at www.abs.gov.au/Ausstats.
9. Consultation was undertaken before the instrument was made as follows:
- The Department of Education, Science and Training advised of the approval for the Australian Pharmacy Examining Council (APEC) to be renamed as the Council of Pharmacy Registering Authorities (COPRA).
10. The instrument, IMMI 06/078, commences on the day after it is registered on the Federal Register of Legislative Instruments.
Overview
The Migration Regulations 1994, enacted by the Australian Parliament, were established to regulate various aspects of migration, including the Employer Nomination Scheme. This scheme allows employers to sponsor skilled migrants for permanent residency by nominating them for specific job positions. The legislation, particularly the F2006L03925 Explanatory Statement, addresses the need to clarify and specify the criteria for occupations, locations, salaries, and relevant assessing authorities for positions nominated under this scheme. The policy objective of these regulations is to ensure that nominated positions meet specific criteria, such as corresponding to specified occupations, being carried out in specified locations, and offering salaries at least equal to those specified in a Gazette Notice. Additionally, the regulations specify which assessing authorities are responsible for evaluating the skills of applicants for certain skilled occupations. This legislative framework aims to maintain the integrity and efficiency of the Employer Nomination Scheme by providing clear guidelines and criteria for employers and applicants alike.
Scope and Application
The Migration Regulations 1994, as specified by this instrument, apply to employers, employees, and applicants for subclass 856 and subclass 121 visas under the Employer Nomination Scheme. It details the occupations for which employers can seek approval for nominated positions, the geographic locations where the tasks may be performed, and the salaries that must be offered. Additionally, it identifies the relevant skills assessing authorities for determining the suitability of an applicant's skills for specified skilled occupations. This legislation has a national reach within Australia, as it is made under the Commonwealth's Migration Act 1958. Subordinate instruments may further extend or refine the application of these regulations through Gazette Notices, specifying particular occupations, locations, salaries, and assessing authorities. The instrument does not explicitly state exclusions or exemptions, but it is implied that occupations, locations, salaries, and assessing authorities not specified in the Gazette Notices would not be eligible under this scheme.
Key Provisions
The key provisions of the F2006L03925 legislation, which are outlined in the Migration Regulations 1994, relate to the Employer Nomination Scheme. Section 5.19(2)(h) and (i) specify that employers must ensure the tasks of a nominated position correspond with those of an occupation listed in a Gazette Notice and that these tasks are carried out in a location also specified in a Gazette Notice (paragraphs 3 and 4). Additionally, the regulation 5.19(2)(i) stipulates that the salary paid to the employee in the nominated position must meet or exceed the minimum salary specified for that occupation and location in a Gazette Notice (paragraph 4). Sub-subparagraphs 856.213(b)(i)(A) and 121.211(b)(i)(A) further require that applicants for subclass 856 and subclass 121 visas must have their skills assessed by an assessing authority specified in a Gazette Notice for the relevant occupation (paragraph 5). Lastly, subparagraphs 856.213(b)(ii) and 121.211(b)(ii) require that the salary paid to the applicant in their nominated position must be at least the minimum amount specified in a Gazette Notice for that occupation and location (paragraph 6).
The Act imposes several obligations on parties involved in the Employer Nomination Scheme. Employers must ensure that the nominated position aligns with the specified occupation and location, as well as meeting the minimum salary requirements. They must also provide evidence that the nominated position meets the criteria set out in the Gazette Notice. Applicants for subclass 856 and subclass 121 visas must undergo a skills assessment by a specified assessing authority and ensure that they are paid at least the minimum salary specified for their occupation and location. These obligations are critical to ensure compliance with the scheme and to maintain the integrity of the skilled migration process.
Breaches of the provisions outlined in the F2006L03925 legislation can result in civil or criminal consequences. For example, employers who fail to meet the specified criteria for the nominated position or who do not pay the required minimum salary may face penalties. These could include fines, revocation of the nomination, or legal action. Similarly, applicants who do not meet the skills assessment requirements or who are paid less than the specified minimum salary may also face consequences, potentially impacting their eligibility for the visa. The specific penalties for these breaches are not detailed in the explanatory statement but can be severe, reflecting the importance of compliance with the scheme.