Commonwealth Numbered Regulations

1996 No. 76 MIGRATION REGULATIONS (AMENDMENT) - REG 4

4.1 After Division 1.4, insert:

"Division 1.4A-Temporary business entry:
sponsorship and nomination Object of this Division

"1.20A. The object of this Division is to provide for:

   (a)  applications for approval as a business sponsor; and

   (b)  nominations by business sponsors of activities to be undertaken in
        Australia by prospective holders of Subclass 457 (Business (Long
        Stay)) visas; and

   (c)  approval of those applications and nominations; and

   (d)  revocation of approvals as a business sponsor. Interpretation

"1.20B. In this Division:
'key activity', in relation to a person (in this definition called 'the
employer') who proposes to provide employment in Australia to an individual,
means an activity that:

   (a)  is essential to the business operations of the employer; and

   (b)  requires:

        (i)    specialist or professional skills; or

        (ii)   specialised knowledge of the business operations of the
               employer;
'labour market testing', in relation to a position, means testing of the
Australian labour market to demonstrate that a suitably qualified Australian
citizen or Australian permanent resident is not readily available to fill the
position;
'person' includes an unincorporated body of persons;
'pre-qualified business sponsor' means a person approved as a pre-qualified
business sponsor in accordance with regulation 1.20D;
'standard business sponsor' means a person approved as a standard business
sponsor in accordance with regulation 1.20D. Applications for approval as
business sponsors

"1.20C. (1) A person may apply to the Minister for approval as:

   (a)  a pre-qualified business sponsor; or

   (b)  a standard business sponsor. (NOTE: In relation to the effect of
        approval as a pre-qualified business sponsor and a standard business
        sponsor, see:
subregulations 1.20D (5) and (6); and
subclauses 457.223 (4) and (5) of Schedule 2.)

"(2) Application must be made in accordance with approved form 1067.

"(3) An application for approval as a pre-qualified business sponsor must be
accompanied by a fee of $3,000. Approval as business sponsors

"1.20D. (1) Subject to this regulation, the Minister may, by instrument in
writing, approve or reject an application for approval as a pre-qualified
business sponsor or as a standard business sponsor.

"(2) The Minister must approve an application for approval as a pre-qualified
business sponsor, or as a standard business sponsor, made in accordance with
regulation 1.20C if:

   (a)  the Minister is satisfied that the applicant for approval is lawfully
        operating in Australia a business in which the employment of the
        holder of a Subclass 457 (Business (Long Stay)) visa would contribute
        to:

        (i)    the creation or maintenance of employment for Australian
               citizens or Australian permanent residents; or

        (ii)   expansion of Australian trade in goods or services; or

        (iii)  the improvement of Australian business links with international
               markets; or

        (iv)   competitiveness within sectors of the Australian economy; and

   (b)  in respect of each visa applicant who seeks to satisfy the primary
        criteria for a Subclass 457 visa to be granted on the basis that:

        (i)    the applicant for approval is the employer referred to in
               subclause 457.223 (4) or (5) of Schedule 2 in relation to the
               visa application; and

        (ii)   the visa applicant satisfies the requirements of that
               subclause; the Minister is satisfied that:

        (iii)  the applicant for approval proposes to be the direct employer
               in Australia of the visa applicant as the holder of the visa
               (in this subregulation called 'the visa holder'); or

        (iv)   if the applicant for approval is a body corporate-the applicant
               for approval is, under section 50 of the Corporations Law,
               related to the body corporate that proposes to be the direct
               employer in Australia of the visa holder; and

   (c)  the Minister is satisfied that the applicant for approval:

        (i)    will introduce to, or utilise or create in, Australia new or
               improved technology or business skills; or

        (ii)   has a satisfactory record of, or a demonstrated commitment
               towards, training Australian citizens and Australian permanent
               residents in the business operations of the applicant in
               Australia; and

   (d)  the Minister is satisfied that nothing adverse is known to Immigration
        about the business background of the applicant for approval; and

   (e)  the Minister is satisfied that where relevant, the applicant for
        approval has a satisfactory record of compliance with the immigration
        laws of Australia; and

   (f)  the Minister is satisfied that while there is in effect a Subclass 457
        visa granted on the basis that:

        (i)    the applicant for approval is the employer referred to in
               subclause 457.223 (4) or (5) of Schedule 2 in relation to a
               visa application; and

        (ii)   the visa holder satisfies the requirements of that subclause;
               the applicant for approval is able, in relation to each visa
               holder, to comply with the undertakings given by the applicant
               in accordance with form 1067.

"(3) An instrument approving a person as a standard business sponsor must
specify the maximum number of nominations of business activities, being a
number not exceeding the number proposed in the application for approval, that
may be approved under regulation 1.20H in relation to the standard business
sponsor while the approval is in effect.

"(4) As soon as practicable after deciding an application for approval as a
pre-qualified business sponsor, or as a standard business sponsor, the
Minister must provide the applicant with:

   (a)  a copy of the instrument approving or rejecting the application; and

   (b)  if the application is rejected, a statement of the reasons why the
        application was not approved.

"(5) Unless renewed under regulation 1.20E, approval of a person as a
pre-qualified business sponsor ceases to have effect:

   (a)  at the end of the period of 24 months commencing on the day on which
        the approval is given; or

   (b)  on revocation of the approval under regulation 1.20F; whichever
        happens first.

"(6) Approval of a person as a standard business sponsor ceases to have
effect:

   (a)  when the number of Subclass 457 visas granted, since the giving of the
        approval, on the basis that:

        (i)    the applicant satisfies the primary criteria; and

        (ii)   the standard business sponsor is the employer (within the
               meaning of subclause 457.223 (4) or (5) of Schedule 2; is equal
               to the number of nominations of business activities determined
               under subregulation (3) in relation to that approval of that
               standard business sponsor; or

   (b)  at the end of the period of 12 months commencing on the day on which
        the approval is given; or

   (c)  on revocation of the approval under regulation 1.20F; whichever
        happens first. Renewal of approvals as pre-qualified business sponsors

"1.20E. (1) Subject to this regulation, the Minister may, by instrument in
writing, renew or refuse to renew the approval of a person as a pre-qualified
business sponsor for a period of 12 months after the expiry of the current
period of approval.

"(2) Subject to subregulation (3), the Minister must renew the approval of a
person as a pre-qualified business sponsor:

   (a)  in relation to the period of 12 months following the period of 24
        months mentioned in subregulation 1.20D (5)-on payment by the person,
        before the end of the 24-month period, of a fee of $1,000; and

   (b)  in relation to:

        (i)    the period of 12 months following the period to which a fee
               paid under paragraph (a) relates; or

        (ii)   a succeeding period of 12 months; on payment by the person,
               before the end of each 12-month period, of a fee of $1,000.

"(3) The Minister must not renew the approval of a person as a pre-qualified
business sponsor unless the Minister is satisfied that the person:

   (a)  has complied with the undertakings given by the person in accordance
        with approved form 1067 in the period preceding the period to which
        the renewal relates; and

   (b)  continues to satisfy the requirements for approval as a pre-qualified
        business sponsor.

"(4) As soon as practicable after the Minister makes a decision to renew, or
refuse to renew, the approval of a person as a pre-qualified business sponsor,
the Minister must provide the person with:

   (a)  a copy of the instrument renewing, or refusing to renew, the approval;
        and

   (b)  if the Minister refuses to renew the approval, the reasons for the
        refusal.

Revocation of approval as business sponsor

"1.20F. (1) Without limiting the power of the Minister to revoke the approval
of a person as a pre-qualified business sponsor, or as a standard business
sponsor, the Minister may, in particular, by instrument in writing, revoke
such an approval if the Minister is satisfied that the person:

   (a)  has not complied, or is not complying, with the undertakings given by
        the person in accordance with approved form 1067; or

   (b)  does not continue to satisfy the requirements for approval as a
        pre-qualified business sponsor or standard business sponsor.

"(2) As soon as practicable after revoking the approval of a person as a
pre-qualified business sponsor, or as a standard business sponsor, the
Minister must provide the person with:

   (a)  a copy of the instrument revoking the approval; and

   (b)  a statement of the reasons for the revocation. Nomination of business
        activities

"1.20G. (1) A person who:

   (a)  is a party to a labour agreement; or

   (b)  is a pre-qualified business sponsor; or

   (c)  is a standard business sponsor; or

   (d)  does not operate a business in Australia but:

        (i)    has given undertakings in accordance with approved form 1067;
               and

        (ii)   is a person whom the Minister is satisfied (apart from not
               operating a business in Australia) would, on application, be
               likely to be approved as a standard business sponsor; may
               nominate to the Minister an activity in which an individual is
               proposed to be employed by the person in Australia.

"(2) A nomination must be made in accordance with approved form 1068.

"(3) A nomination, except a nomination by a party to a labour agreement or a
pre-qualified business sponsor, must be accompanied by a fee of $205.

"(4) If a person (except a party to a labour agreement) who nominates an
activity that is not a key activity proposes to employ a visa applicant in a
position to perform the activity, the nomination must be accompanied:

   (a)  in the case of proposed employment for a period of more than 3, but
        not more than 12, months-by the results of labour market testing in
        relation to the position, where so required by the Minister; and

   (b)  in the case of proposed employment for a period of more than 12
        months-by the results of labour market testing in relation to the
        position. Approval of nominations of business activities

"1.20H. (1) Subject to this regulation, the Minister may, by instrument in
writing, approve, or refuse to approve, the nomination of an activity in which
an individual is proposed to be employed in Australia.

"(2) Subject to subregulation (3), the Minister must approve the nomination of
an activity made in accordance with regulation 1.20G.

"(3) The Minister must not approve the nomination of an activity that is
accompanied by the results of labour market testing unless the Minister is
satisfied that those results indicate that a suitably qualified Australian
citizen or Australian permanent resident is not readily available to fill the
position to which the nominated activity relates.

"(4) As soon as practicable after making a decision to approve, or to refuse
to approve, the nomination of an activity, the Minister must provide the
person who nominated the activity with:

   (a)  a copy of the instrument approving, or refusing to approve, the
        nomination of the activity; and

   (b)  if the nomination is not approved, a statement of the reasons why the
        nomination was not approved.

"(5) The nomination of an activity ceases to have effect:

   (a)  at the end of the period of 12 months commencing on the day on which
        the nomination of the activity is approved; or

   (b)  when the position in which the nominated activity is to be performed
        by the holder of a Subclass 457 visa is filled; or

   (c)  in the case of an activity nominated by a person who is a party to a
        labour agreement-when that agreement ceases to have effect; or

   (d)  in the case of an activity nominated by a person who is approved as a
        pre-qualified business sponsor or a standard business sponsor-when the
        approval ceases to have effect; or

   (e)  in the case of an activity nominated by a person to whom paragraph
        1.20G (1) (d) refers-either:

        (i)    upon the Minister becoming satisfied that the person is not
               able to comply with undertakings given by the person in
               accordance with approved form 1067; or

        (ii)   upon the Minister ceasing to be satisfied that the person
               (apart from not operating a business in Australia) would, on
               application, be likely to be approved as a standard business
               sponsor; whichever happens first. Exercise of Minister's powers
               under this Division

"1.20I. In addition to being exercisable by the Minister personally or by a
delegate of the Minister, the powers and functions of the Minister under this
Division are exercisable by a person who:

   (a)  is the holder of an office under the Act; and

   (b)  is authorised in writing by the Minister to exercise those powers;
        and, when any of those powers or functions is exercised by such a
        person, that power or function is taken, for the purposes of these
        Regulations, to have been exercised by the Minister.".