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MIGRATION REGULATIONS 1994 - REG 5.19

Approval of nominated positions--Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

             (1)  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.

             (2)  The application must:

                     (a)  be made in accordance with approved form 1395 (Internet); and

                     (b)  identify the position; and

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

                     (d)  identify an occupation in relation to the position; and

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

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

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

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

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

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

                      (f)  be accompanied by the fee mentioned in regulation 5.37; and

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

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

                     (g)  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.

Approval of nomination

             (3)  The Minister must, in writing:

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

                     (b)  otherwise--refuse to approve the nomination.

Requirements for approval--general

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

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

                     (b)  either:

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

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

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

                              (i)  hold a licence of a particular kind; or

                             (ii)  hold registration of a particular kind; or

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

                            to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

                     (d)  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;

                   (da)  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;

                     (e)  if the nomination relates to a visa in a Temporary Residence Transition stream--the requirements set out in subregulation (5) are met;

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

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

Temporary Residence Transition stream--additional requirements for approval

             (5)  If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

                     (a)  at the time the application is made, the identified person holds:

                              (i)  a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

                             (ii)  a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream; or

                            (iii)  for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph--a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

                            (iv)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)--a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

                             (v)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)--for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

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

                     (b)  the occupation:

                              (i)  is listed in ANZSCO; and

                             (ii)  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;

                     (c)  unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph--the occupation must:

                              (i)  be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

                             (ii)  apply to the identified person in accordance with an instrument made under that subregulation;

                     (d)  either:

                              (i)  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

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

                     (e)  during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

                              (i)  a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

                             (ii)  a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream;

                            (iii)  for a person specified in a legislative instrument made under subparagraph (a)(iii)--a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream;

                      (f)  unless paragraph (g) applies--during the period of 4 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 (e) were granted:

                              (i)  for a total period of at least 3 years (not including any periods of unpaid leave); and

                             (ii)  on a full-time basis, with the employment being undertaken in Australia;

                     (g)  if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)--during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

                     (h)  the nominator:

                              (i)  was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

                             (ii)  is actively and lawfully operating a business in Australia;

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

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

                      (l)  the identified person will be employed on a full-time basis in the position for at least 2 years;

                    (m)  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;

                     (n)  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;

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

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

                             (ii)  references to the nominee were references to the identified person; and

                            (iii)  references to the person were references to the nominator;

                     (p)  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 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

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

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

Minister may vary certain Temporary Residence Transition stream requirements

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

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

             (8)  The Minister may, by legislative instrument, specify:

                     (a)  occupations for the purposes of paragraph (5)(c); and

                     (b)  persons who are exempt from the operation of that paragraph; and

                     (c)  for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

                              (i)  the nominator;

                             (ii)  the identified person;

                            (iii)  the occupation;

                            (iv)  the position in which the identified person is to work;

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

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

Direct Entry stream--additional requirements for approval

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

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

                     (b)  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;

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

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

                     (e)  the identified person will be employed on a full-time basis in the position for at least 2 years;

                      (f)  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;

                     (g)  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;

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

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

                             (ii)  references to the nominee were references to the identified person; and

                            (iii)  references to the person were references to the nominator;

                      (i)  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 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

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

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

Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

           (10)  The requirements of this subregulation are as follows:

                     (a)  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:

                              (i)  made under subregulation (11); and

                             (ii)  in force at the time the application is made;

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

           (11)  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:

                     (a)  the nominator;

                     (b)  the identified person;

                     (c)  the occupation;

                     (d)  the position in which the identified person is to work;

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

                      (f)  the circumstances in which the person is to be employed in the position.

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

           (12)  The requirements of this subregulation are as follows:

                     (a)  the position is located at a place in regional Australia;

                     (b)  the business operated by the nominator is located at that place;

                     (c)  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;

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

                              (i)  made under subregulation (13); and

                             (ii)  as in force at the time the application is made;

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

                      (f)  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:

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

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

                            (iii)  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;

                     (g)  the body must:

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

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

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

           (13)  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:

                     (a)  the nominator;

                     (b)  the identified person;

                     (c)  the occupation;

                     (d)  the position in which the identified person is to work;

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

                      (f)  the circumstances in which the person is to be employed in the position.

Labour Agreement stream--additional requirements for approval

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

                     (a)  the nominator is a party to a labour agreement;

                     (b)  the labour agreement:

                              (i)  is in effect; and

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

                     (c)  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;

                     (d)  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.

Minister must give notice of approval or refusal

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

                     (a)  a copy of the written approval or refusal; and

                     (b)  if the Minister refuses to approve the nomination:

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

                             (ii)  a written statement that the decision is a Part 5-reviewable decision.

Note:          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 Part 5-reviewable decision.

Meaning of regional Australia

           (16)  In this regulation:

"regional Australia " means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.



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