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MIGRATION REGULATIONS 1994 - REG 2.73

Process for nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

Application of this regulation

             (1)  This regulation applies in relation to a person who is nominating a proposed occupation under paragraph 140GB(1)(b) of the Act in relation to any of the following (the nominee ):

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

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

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

             (2)  For the purposes of subsection 140GB(3) of the Act, the person may nominate a proposed occupation in accordance with the process set out in this regulation.

General requirements for nominations

             (3)  The nomination must be made using the internet.

             (4)  The nomination must be made using the form specified by the Minister in a legislative instrument made for the purposes of this subregulation.

             (5)  The nomination must be accompanied by the fee specified by the Minister in a legislative instrument made for the purposes of this subregulation.

          (5A)  The nomination must be accompanied by any nomination training contribution charge the person is liable to pay in relation to the nomination.

             (6)  Unless the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream, the occupation must be nominated for a Subclass 482 (Temporary Skill Shortage) visa in:

                     (a)  if the occupation is a short term skilled occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made--the Short-term stream; or

                     (b)  if the occupation is a medium and long term strategic skills occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made--the Medium-term stream.

Alternative method of nominations

             (7)  For subregulations (3) to (5):

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

                     (b)  if the Minister specifies in the instrument a form for the different way of making the nomination, the nomination must be made using that form; and

                     (c)  if the Minister specifies in the instrument a different fee for making the nomination, the nomination must be accompanied by that fee.

Note:          Subregulation (3) relates to making nominations on the internet. It may be necessary for the Minister to specify arrangements other than those in subregulations (3) to (5) if special circumstances exist.

Information to be included in nominations

             (8)  The nomination must identify the nominee.

             (9)  The person must provide the following information as part of the nomination:

                     (a)  if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream--the name of the occupation and the corresponding 6-digit code as they are specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made;

                     (b)  if:

                              (i)  the person is a party to a work agreement or negotiations for a work agreement; and

                            (ia)  the work agreement or proposed 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; and

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

                            the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement or proposed work agreement;

                     (c)  the location or locations at which the occupation is to be carried out;

                     (d)  the proposed period of stay for a visa granted on the basis of the nomination, in accordance with subregulations (10) and (11);

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

                     (e)  any other information specified by the Minister in a legislative instrument made for the purposes of this paragraph.

           (10)  For the purposes of paragraph (9)(d):

                     (a)  if:

                              (i)  the occupation is a short term skilled occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made; and

                             (ii)  it would not be inconsistent with any international trade obligation of Australia to require the period of stay for a Subclass 482 (Temporary Skill Shortage) visa granted on the basis of the nomination to be no more than 2 years;

                            the proposed period of stay may be 1 or 2 years; or

                     (b)  otherwise--the proposed period of stay may be 1, 2, 3 or 4 years.

           (11)  However, if:

                     (a)  the person is a party to a work agreement or negotiations for a work agreement; and

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

the period of stay must not exceed the period specified in the work agreement or proposed work agreement.

           (12)  The person must certify, in writing, as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

           (13)  Unless the occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13), the person must certify as part of the nomination, in writing, that:

                     (a)  the employment contract entered into with the nominee complies; or

                     (b)  the employment contract to be entered into with the nominee will, when entered, comply;

with all applicable requirements imposed by Commonwealth, State or Territory law relating to employment including, if applicable, the National Employment Standards (within the meaning of the Fair Work Act 2009 ).

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

           (14)  If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the person must certify as part of the nomination, in writing:

                     (a)  that the tasks of the position include a significant majority of the tasks specified for the occupation in:

                              (i)  ANZSCO; or

                             (ii)  if there is no ANZSCO code for the occupation--the instrument made under subregulation 2.72(9) in force at the time the nomination is made; and

                     (b)  that the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the occupation in:

                              (i)  ANZSCO; or

                             (ii)  if there is no ANZSCO code for the occupation--the instrument made under subregulation 2.72(9) in force at the time the nomination is made; and

                     (c)  unless the occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13), that the occupation is a position in:

                              (i)  if the person is an overseas business sponsor or would be an overseas business sponsor if the person were approved as a standard business sponsor--the person's business; or

                             (ii)  in any other case--the person's business or a business of an associated entity of the person.

Additional requirements in relation to Labour Agreement stream

           (15)  If:

                     (a)  the person is a party to a work agreement or negotiations for a work agreement; and

                    (aa)  the work agreement or proposed 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; and

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

the person must certify as part of the nomination, in writing, that:

                     (c)  the tasks of the position include a significant majority of the tasks specified for the occupation in:

                              (i)  ANZSCO; or

                             (ii)  if there is no ANZSCO code for the occupation--the work agreement or proposed work agreement; and

                     (d)  the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the occupation in the work agreement or proposed work agreement.



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