IMMI 09/106
EXPLANATORY STATEMENT
Migration Regulations 1994
SPECIFICATION OF OCCUPATIONS FOR SUB-SUBPARAGRAPHS 2.72(10)(d)(ii)(B) AND 2.72(10)(d)(iii)(B) AND PARAGRAPH 2.86(2B) AND SUBPARAGRAPH 457.223(4)(ba)(iv)
(SUB-SUBPARAGRAPHS 2.72(10)(d)(ii)(B) and 2.72(10)(d)(iii)(B), SUBREGULATION 2.86(2B), and SUBPARAGRAPH 457.223(4)(ba)(iv))
- This Instrument is made under sub-subparagraphs 2.72(10)(d)(ii)(B) and 2.72(10)(d)(iii)(B), subregulation 2.86(2B), and subparagraph 457.223(4)(ba)(iv) of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
2. Regulation 2.72 of Part 2A to the Regulations specifies the criteria for approval of a nomination of an occupation in relation to the holder of, or an applicant or a proposed applicant for a Subclass 457 (Business (Long Stay)) visa.
3. Subparagraph 2.72(10)(d)(ii) provides that if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia, the person must have certified as part of the nomination, in writing, that the nominated occupation is a position in the business of the standard business sponsor or the nominated occupation is an occupation specified by the Minister in an instrument in writing for this paragraph.
4. Subparagraph 2.72(10)(d)(iii) mirrors subparagraph 2.72(10)(d)(ii) and provides that if the person lawfully operates a business in Australia the nominated occupation is a position with a business, or an associated entity, of the person or the nominated occupation is an occupation specified by the Minister in an instrument in writing for this paragraph.
5. These provisions ensure that the Subclass 457 (Business (Long Stay)) visa holder must work in the business of the standard business sponsor or, where permitted, for an associated entity of the standard business sponsor, unless the occupation in which they are to work is one which is specified by the Minister in an instrument in writing. The purpose of this Instrument, therefore, is to specify the occupations which are exempt from the requirement prescribed by subparagraphs 2.72(10)(d)(ii) and 2.72(10)(d)(iii).
6. Regulation 2.86 of Part 2A to the Regulations prescribes an obligation to ensure the primary sponsored person works or participates in the nominated occupation, program or activity. In so far as the obligation applies to a person who is or was a sponsor of a primary sponsored person who holds, or who last held, a Subclass 457 (Business (Long Stay)) visa, subregulation 2.86(2A) qualifies the obligation further by prescribing that the sponsor must ensure the primary sponsored person is only engaged as an employee of the sponsor, or an employee of their associated entity.
7. Subregulation 2.86(2B) operates as an exception to subregulation 2.86(2A) by providing that the Subclass 457 (Business (Long Stay)) visa holder or former Subclass 457 (Business (Long Stay)) visa may be engaged as an independent contractor by the sponsor or an associated entity of the sponsor, if the primary sponsored person is engaged in an occupation which is specified by the Minister in an instrument in writing for this subparagraph.
8. Subregulation 2.86(2B) has been inserted primarily to accommodate the flexible employment arrangements typically associated with medical practitioners currently provided for under the Subclass 422 (Medical Practitioner) visa. The provision ensures that the sponsor will not be sanctioned for breaching the obligation if the visa holder or former visa holder is engaged by them or their associated entity as an independent contractor rather than as an employee.
9. The purpose of this Instrument is to specify the occupations which are exempt from the requirement specified in subregulation 2.86(2A).
10. Subparagraph 457.223(4)(ba)(iv) of Schedule 2 to the Regulations and provides that where the business activities of the standard business sponsor include the recruitment and/or supply of labour to other unrelated businesses, a Subclass 457 (Business (Long Stay)) visa can only be granted if the occupation to be undertaken by the visa applicant is in a position with a business or associated entity of the standard business sponsor, unless the occupation is listed in the Instrument and therefore exempted from this requirement.
11. The purpose of this Instrument is to specify the occupations which are exempt from the requirement specified in subparagraph 457.223(4)(ba)(iv).
12. 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.
13. The Instrument, IMMI 09/106, commences on 14 September 2009.