MIGRATION REGULATIONS 1994 - REG 2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

MIGRATION REGULATIONS 1994 - REG 2.72

Application of this regulation

  (1)   This regulation applies in relation to a person who:

  (a)   is any of the following:

  (i)   a standard business sponsor;

  (ii)   a person who has applied to be a standard business sponsor;

  (iii)   a party to a work agreement (other than a Minister);

  (iv)   a party to negotiations for a work agreement (other than a Minister); and

  (b)   under paragraph   140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee ):

  (i)   a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

  (ii)   a holder of a Subclass 482 (Temporary Skill Shortage) visa;

  (iii)   an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

  (2)   For the purposes of paragraph   140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note:   In addition, subsection   140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

General

  (3)   The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation   2.73.

  (4)   The Minister is satisfied that either:

  (a)   there is no adverse information known to Immigration about the person or a person associated with the person; or

  (b)   it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

  (5)   The Minister is satisfied that:

  (a)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream--the person is a standard business sponsor; or

  (b)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream:

  (i)   the person is a party to a work agreement (other than a Minister); and

  (ii)   the work agreement authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 482 (Temporary Skill Shortage) visa.

  (5A)   The Minister is satisfied that any debt due by the person as mentioned in section   140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

Information to be provided as part of nomination

  (6)   If the nominee holds:

  (a)   a Subclass 457 (Temporary Work (Skilled)) visa; or

  (b)   a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause   457.321 of Schedule   2 (as in force before 18   March 2018) or subclause   482.312(1) of Schedule   2.

  (7)   However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

Nominated occupation

  (8)   The Minister is satisfied that:

  (a)   the occupation and its corresponding 6 - digit code correspond to an occupation and its corresponding 6 - digit code specified in:

  (i)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream--the instrument made under subregulation   (9) in force at the time the nomination is made; or

  (ii)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream--the work agreement; and

  (b)   the occupation applies to the nominee in accordance with the instrument or work agreement.

  (9)   The Minister may, by legislative instrument, specify occupations and, for each occupation:

  (a)   whether the occupation is:

  (i)   a short term skilled occupation; or

  (ii)   a medium and long term strategic skills occupation; and

  (b)   either:

  (i)   the 6 - digit ANZSCO code for the occupation; or

  (ii)   if there is no 6 - digit ANZSCO code for the occupation--a 6 - digit code for the occupation; and

  (c)   if there is no 6 - digit ANZSCO code for the occupation--tasks, qualifications and experience for the occupation; and

  (d)   any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

  (i)   the person who nominated the occupation;

  (ii)   the nominee;

  (iii)   the occupation;

  (iv)   the position in which the nominee is to work;

  (v)   the circumstances in which the occupation is undertaken;

  (vi)   the circumstances in which the nominee is to be employed in the position.

  (10)   The Minister is satisfied that the position associated with the occupation is:

  (a)   genuine; and

  (b)   a full - time position.

  (10A)   However, the Minister may disregard the criterion in paragraph   (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

Additional requirements in relation to Short - term stream and Medium - term stream

  (11)   If:

  (a)   the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream; and

  (b)   the person is not an overseas business sponsor; and

  (c)   the occupation is not an occupation specified by the Minister in an instrument made under subregulation   (13);

the Minister is satisfied that:

  (d)   the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer ); and

  (e)   the person will give the Minister a copy of the contract signed by the employer and the nominee.

  (12)   If:

  (a)   the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream; and

  (b)   the person is an overseas business sponsor; and

  (c)   the occupation is not an occupation specified by the Minister in an instrument made under subregulation   (13);

the Minister is satisfied that:

  (d)   the nominee will be engaged only as an employee under a written contract of employment by the person; and

  (e)   the person will give the Minister a copy of the contract signed by the person and the nominee.

  (13)   The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs   (11)(c) and (12)(c), subregulation   2.73(13), paragraphs 2.73(14)(c), 2.86(2A)(b) and (2AA)(ab) and   5.19(5)(g), subregulation   5.19(7), clauses   482.224 and 482.233 of Schedule   2 and paragraph   8607(3)(a) of Schedule   8.

  (14)   If:

  (a)   the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream; and

  (b)   the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

  (c)   the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

the person has provided evidence to the Minister that the nominee satisfies:

  (d)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream--any language test requirements specified by the inister in a legislative instrument for clause   482.223 of Schedule   2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream; or

  (e)   if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium - term stream--any language test requirements specified by the inister in a legislative instrument for clause   482.232 of Schedule   2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the edium - term stream.

  (15)   Subject to subregulation   (16), if:

  (a)   the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream; and

  (b)   the Minister is not satisfied that the nominee's annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

the Minister is satisfied that:

  (c)   the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation   (17); and

  (d)   the annual market salary rate, excluding any non - monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation   (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

  (e)   the nominee's annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation   (17)); and

  (f)   the nominee's annual earnings, excluding any non - monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph   (d); and

  (g)   either:

  (i)   there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation   (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

  (ii)   it is reasonable to disregard any such information.

  (16)   However:

  (a)   the Minister may disregard the criterion in paragraph   (15)(d) if the Minister is satisfied that:

  (i)   the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation   (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph   (15)(d); and

  (ii)   it is reasonable in the circumstances to do so; and

  (aa)   the Minister may disregard the criterion in paragraph   (15)(e) if:

  (i)   under subregulation   (10A), the Minister disregards the criterion in paragraph   (10)(b) in relation to the position associated with the occupation; and

  (ii)   the Minister is satisfied that it is reasonable in the circumstances to do so; and

  (b)   the Minister may disregard the criterion in paragraph   (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

  (17)   The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section   140GB of the Act or an occupation in relation to which a position is nominated under regulation   5.19.

  (18)   If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short - term stream or Medium - term stream, the Minister is satisfied that:

  (a)   either:

  (i)   there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

  (ii)   it is reasonable to disregard any such information; and

  (b)   if the person is lawfully operating a business in Australia--the person has not engaged in discriminatory recruitment practices.

Additional requirements in relation to Labour Agreement stream

  (19)   If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream, the Minister is satisfied that:

  (a)   the occupation is specified in the work agreement as an occupation that the person may nominate; and

  (b)   if the work agreement specifies requirements that must be met by the party to the work agreement--the requirements of the work agreement have been met; and

  (c)   the number of nominations in relation to Subclass 457 (Temporary Work (Skilled)) visas and Subclass 482 (Temporary Skill Shortage) visas made by the person and approved by the inister under section   140GB of the Act is less than the number of approved nominations in relation to those types of visa permitted under the work agreement for the year.