Migration Regulations 1994

A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

The application must:

if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa—be made before 16 November 2019 (subject to subclause (2A)); and

subject to subregulation (2AA), be made using the form specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

identify the position; and

identify a person (the identified person) in relation to the position; and

identify an occupation in relation to the position; and

identify the subclass and stream to which the nomination relates, which must be one of the following:

a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

be accompanied by the fee mentioned in regulation 5.37; and

be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Paragraph (2)(aa) does not apply if:

the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

For the purposes of paragraph (2)(a):

if the Minister specifies, in a legislative instrument made for the purposes of this subregulation, a different way of making an application in circumstances specified in the instrument, the application may be made in that way; and

if the Minister specifies in the instrument a form for the different way of making the application, the application must be made using that form.

The Minister must, in writing:

approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

otherwise—refuse to approve the nomination.

The requirements to be met for the nomination to be approved are as follows:

the application is made in accordance with subregulation (2);

either:

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

it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

if it is mandatory, in the State or Territory in which the position is located, for a person to:

hold a licence of a particular kind; or

hold registration of a particular kind; or

be a member (or a member of a particular kind) of a particular professional body;

the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

if the nomination relates to a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

if the nomination relates to a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream—the requirements set out in subregulation (5A) are met;

if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

If the nomination relates to a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream, the following requirements must also be met:

at the time the application is made, the identified person holds:

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

a Subclass 482 (Temporary Skill Shortage) visa; or

a Subclass 482 (Skills in Demand) visa; or

if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iia)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i), (ii) or (iia), a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

the occupation:

is listed in ANZSCO; and

is the same occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa or Subclass 482 (Skills in Demand) visa was granted;

either:

there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

it is reasonable to disregard any such information;

the nominator:

was the standard business sponsor, or the party to a work agreement, who last identified the identified person in a nomination approved under section 140GB of the Act; and

is actively and lawfully operating a business in Australia;

the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

the identified person will be employed on a full‑time basis in the position for at least 2 years;

the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

paragraph 2.72(15)(a) did not apply; and

references to the nominee were references to the identified person; and

references to the person were references to the nominator; and

the words in paragraph 2.72(15)(d) were replaced with “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 2.72(17)) is not less than the amount of the core skills income threshold”; and

the words in paragraph 2.72(15)(f) were replaced with “the identified person’s annual earnings, excluding any non‑monetary benefits, in relation to the occupation will not be less than the amount of the core skills income threshold”; and

the words in subparagraph 2.72(16)(a)(i) were replaced with “the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)) is not less than the amount of the core skills income threshold”;

either:

there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person 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

it is reasonable to disregard any such information;

the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

If the nomination relates to a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream, the following requirements must also be met:

at the time the application is made, the identified person holds:

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

a Subclass 482 (Temporary Skill Shortage) visa; or

if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i) or (ii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii), a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

the occupation:

is listed in ANZSCO; and

has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

either:

there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

it is reasonable to disregard any such information;

during the period of 3 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 2 years:

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

a Subclass 482 (Temporary Skill Shortage) visa;

unless paragraph (f) applies—during the period of 3 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (d) were granted:

for a total period of at least 2 years (not including any periods of unpaid leave); and

on a full‑time basis, with the employment being undertaken in Australia;

if the visa, or visas, mentioned in paragraph (d) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 3 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 2 years (not including any periods of unpaid leave);

the nominator:

was the standard business sponsor, or the party to a work agreement, who last identified the identified person in a nomination approved under section 140GB of the Act; and

is actively and lawfully operating a business in Australia;

the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

the identified person will be employed on a full‑time basis in the position for at least 2 years;

the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

requirements set out in subregulation 2.72C(15) are met, applying subregulations 2.72C(15) and (16) as if:

paragraph 2.72C(15)(a) did not apply; and

references to the nominee were references to the identified person; and

references to the person were references to the nominator;

either:

there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person 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

it is reasonable to disregard any such information;

the nominator has provided the information required by the Minister for the purposes of paragraphs (i) to (l) of this subregulation.

The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5A)(d), (e) and (f) for persons specified in the instrument.

Paragraphs (5)(j), (k) and (l) and (5A)(h), (i) and (j) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

the nominator is actively and lawfully operating a business in Australia;

if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;

the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

the identified person will be employed on a full‑time basis in the position for at least 2 years;

the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

paragraph 2.72(15)(a) did not apply; and

references to the nominee were references to the identified person; and

references to the person were references to the nominator; and

the words in paragraph 2.72(15)(d) were replaced with “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 2.72(17)) is not less than the amount of the core skills income threshold”; and

the words in paragraph 2.72(15)(f) were replaced with “the identified person’s annual earnings, excluding any non‑monetary benefits, in relation to the occupation will not be less than the amount of the core skills income threshold”; and

the words in subparagraph 2.72(16)(a)(i) were replaced with “the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)) is not less than the amount of the core skills income threshold”;

either:

there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person 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

it is reasonable to disregard any such information;

the requirements set out in subregulation (10) or (12) are met.

The requirements of this subregulation are as follows:

the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

made under subregulation (11); and

in force at the time the application is made;

the occupation applies to the identified person in accordance with that instrument.

The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

the nominator;

the identified person;

the occupation;

the position in which the identified person is to work;

the circumstances in which the occupation is undertaken;

the circumstances in which the person is to be employed in the position.

The requirements of this subregulation are as follows:

the position is located at a place in regional Australia;

the business operated by the nominator is located at that place;

the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

made under subregulation (13); and

as in force at the time the application is made;

the occupation applies to the identified person in accordance with that instrument;

the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

whether the identified person would be paid at least the annual market salary rate for the occupation;

whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

the body must:

be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

be located in the State or Territory in which the position is located; and

have responsibility for the local area in which the position is located.

The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

the nominator;

the identified person;

the occupation;

the position in which the identified person is to work;

the circumstances in which the occupation is undertaken;

the circumstances in which the person is to be employed in the position.

If the nomination relates to a visa in a Labour Agreement stream, the following requirements must also be met:

the nominator is a party to a labour agreement;

the labour agreement:

is in effect; and

specifies the occupation as one in relation to which a position may be nominated for the purposes of this regulation;

if the labour agreement specifies requirements that must be met by a party to the labour agreement—the requirements of the labour agreement have been met;

the number of nominations approved by the Minister under this regulation on application by the nominator is less than the number of approved nominations permitted under the labour agreement for the year.

As soon as practicable after deciding whether to approve, or refuse to approve, the nomination, the Minister must give the nominator:

a copy of the written approval or refusal; and

if the Minister refuses to approve the nomination:

a written statement of the reasons why the nomination was refused; and

a written statement that the decision is a reviewable migration decision.

Division 4.1 deals with review of decisions. Paragraph 4.02(4)(e) provides that a decision under regulation 5.19 to refuse an application is a reviewable migration decision.

In this regulation: