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. In particular, this Instrument adds previously omitted eligible occupations that can be nominated under the Subclass 457 (Business (Long Stay)) visa program.
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. Pursuant to section 17 of the Legislative Instruments Act 2003 this instrument is made after 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 09/125, commences on the day after registration on the Federal Register of Legislative Instruments.
Overview
The Explanatory Statement outlines the Migration Regulations 1994 (F2009L03970), which were enacted to specify occupations eligible for nomination under the Subclass 457 (Business (Long Stay)) visa and Subclass 442 (Occupational Trainee) visa. This legislative instrument was created to address the need for a detailed and updated list of occupations that can be nominated for these visas, ensuring that only applicants with specific skilled occupations are approved. The instrument was developed after consultation with various stakeholders, including industry peak bodies, unions, state governments, and multiple federal departments, reflecting a collaborative effort to refine the criteria for visa nominations. The overarching policy objective is to enhance the skilled migration program by ensuring that nominations align with the current occupational needs of the Australian economy.
Scope and Application
This Instrument pertains to the Migration Regulations 1994 and is specifically focused on the nomination criteria for occupations under Subclass 457 (Business (Long Stay)) visas and Subclass 442 (Occupational Trainee) visas. The Instrument aims to ensure that only applicants with particular skilled occupations are eligible for nomination under the Subclass 457 visa, while also specifying the criteria for occupational training that must be met for the approval of a nomination under the Subclass 442 visa. It adds previously omitted eligible occupations to the list of those that can be nominated under the Subclass 457 visa. The occupations are specified in accordance with the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997. This Instrument was made following consultations with various industry stakeholders and government departments as listed. It comes into effect on the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The Migration Regulations 1994, as amended, contain specific provisions regarding the nomination of occupations for certain visa categories. Under the Regulations, sections 2.72 and 2.72I are particularly relevant, as they outline the criteria for approving nominations related to Subclass 457 (Business (Long Stay)) visas and Subclass 442 (Occupational Trainee) visas, respectively. According to section 2.72(10)(a), if a 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 for this provision. This ensures that only applicants with a particular skilled occupation can be nominated for a Subclass 457 visa. Regulation 2.72I applies to occupational trainee sponsors who must meet certain criteria for the approval of a nomination, particularly when it comes to the occupational training that must be specified.
The obligations imposed by the Act require that the nominated occupations for Subclass 457 visas must align with the occupations specified by the Minister. For Subclass 442 visas, the nominated occupational training must be related to an occupation specified by the Minister. These specifications are intended to ensure that the occupations nominated for these visas are relevant and meet the criteria set by the relevant authorities. Additionally, these provisions mandate that the nominated occupations and training programs are adequately aligned with the objectives of the visa categories, which include enhancing the skills of the applicants and ensuring the occupations are in demand in Australia.
Failure to comply with the specified requirements can result in the nomination being rejected or the visa application being denied. Furthermore, there may be civil or criminal consequences for providing false information or engaging in fraudulent activities in relation to visa nominations. The penalties for breaches can include fines and, in some cases, imprisonment. For example, section 238A of the Migration Act 1958 provides for penalties including fines of up to 20,000 penalty units or imprisonment for up to five years, or both, for fraudulent conduct related to visas. The specific penalties and consequences depend on the nature and severity of the breach, with the maximum penalties clearly stated in the relevant sections of the Act.