140GTerms of approval

140G  Terms of approval  (1) An approval as a work sponsor or family sponsor may be on terms specified in the approval.  (2) The terms must be of a kind prescribed by the regulations. Note: The following are examples of the kinds of terms that might be set out in the regulations: (a) the number of people whom the approved sponsor may sponsor under the approval; (b) the duration of the approval.  (3) An actual term may be prescribed by the regulations.  (4) Different kinds of terms may be prescribed for:  (b) different classes in relation to which a person may be approved as a work sponsor or family sponsor. 140GA  Variation of terms of approval  (1) The regulations may establish a process for the Minister to vary a term of a person’s approval as a work sponsor or family sponsor.  (2) The Minister must vary a term specified in an approval if:  (a) the term is of a kind prescribed by the regulations for the purposes of this paragraph; and  (b) prescribed criteria are satisfied.  (3) Different processes and different criteria may be prescribed for:  (b) different kinds of terms; and  (c) different classes in relation to which a person may be approved as a work sponsor or family sponsor. Subdivision BA—Approval of nominations made by approved work sponsors 140GB  Minister to approve nominations  (1) A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:  (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:  (i) the applicant or proposed applicant’s proposed occupation; or  (ii) the program to be undertaken by the applicant or proposed applicant; or  (iii) the activity to be carried out by the applicant or proposed applicant; or  (b) a proposed occupation, program or activity.  (2) The Minister must approve a person’s nomination if:  (a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and  (aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and  (ab) in any case—the person is an approved work sponsor; and  (b) in any case—the prescribed criteria are satisfied. Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position. Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.  (3) The regulations may establish a process for the Minister to approve a person’s nomination.  (4) Different criteria and different processes may be prescribed for:  (b) different classes in relation to which a person may be approved as a work sponsor.  (4A) If the regulations provide for notification by the Minister of a decision whether or not to approve a person’s nomination, then the following provisions of the ART Act do not apply to the decision:  (a) section 267 (decision‑maker must have regard to rules when giving notice of decision);  (b) section 268 (requesting reasons for a reviewable decision from decision‑maker). 140GBA  Labour market testing—condition  (1) This section applies to a nomination by a person, under section 140GB, if:  (a) the person is, or has applied to be, in a class of approved work sponsors prescribed by the regulations; and  (b) the person nominates:  (i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and  (ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and  (c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.  (2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries. Labour market testing condition  (3) The labour market testing condition is satisfied if:  (a) the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and  (aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and  (b) the nomination is accompanied by:  (i) evidence in relation to that labour market testing of a kind determined under subsection (6A); and  (ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person—information about those redundancies or retrenchments; and  (d) having regard to that evidence, and information (if any), the Minister is satisfied that:  (i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and  (ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.  (4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.  (4A) Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.  (5) For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.  (6) Without limiting subsection (5), the Minister may determine the following:  (a) the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved work sponsor;  (b) the method of any such advertising;  (c) the period during which any such advertising must occur;  (d) the duration of any such advertising.  (6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:  (a) will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and  (b) will set out any skills or experience requirements that are appropriate to the position.  (6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.  (6A) For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.  (6B) Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.  (6C) Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions. associated entity has the same meaning as in Part 2A of the regulations. Australian permanent resident means an Australian permanent resident within the meaning of the regulations. eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by another person if, at the time when the nomination is made:  (a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and  (b) the person is employed in the agricultural sector by the other person (or an associated entity of the other person); and  (c) the temporary visa does not prohibit the person from performing that employment. labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position. 140GBB  Labour market testing—major disaster exemption  (1) A person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection (2) of this section is in force in relation to the person.  (2) The Minister may, in writing, exempt a person from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that:  (a) an event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and  (b) the exemption is necessary or desirable in order to assist disaster relief or recovery.  (3) In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following:  (a) the number of individuals affected;  (b) the extent to which the nature or extent of the disaster is unusual.  (4) An exemption of a person under subsection (2):  (a) may be expressed to apply in relation to:  (i) a specified nomination by the person; or  (ii) a specified class of nominations by the person; and  (b) must be expressed to apply to a particular person specified in the exemption rather than a class of persons, despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901.  (5) An exemption made under subsection (2) is not a legislative instrument. 140GBC  Labour market testing—skill and occupational exemptions  (1) This section applies to a nomination by a person, under section 140GB, if the person nominates:  (a) a proposed occupation for the purposes of paragraph 140GB(1)(b); and  (b) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination. Skill and occupational exemptions  (2) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:  (a) either or both of the following are required for the nominated position, in relation to the nominated occupation:  (i) a relevant bachelor degree or higher qualification, other than a protected qualification;  (ii) 5 years or more of relevant experience, other than protected experience; and  (b) the nominated occupation is specified for the purposes of this subsection under subsection (4).  (3) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:  (a) either or both of the following are required for the nominated position, in relation to the nominated occupation:  (i) a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification;  (ii) 3 years or more of relevant experience, other than protected experience; and  (b) the nominated occupation is specified for the purposes of this subsection under subsection (4). Legislative instrument  (4) The Minister may, by legislative instrument:  (a) specify an occupation (or occupations) for the purposes of subsection (2); and  (b) specify an occupation (or occupations) for the purposes of subsection (3).  (5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4). AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003. protected experience means experience in the field of engineering (including shipping engineering) or nursing. protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing. 140GC  Work agreements   For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy. Note: A person (other than a Minister) who is a party to a work agreement is an approved work sponsor and must satisfy sponsorship obligations. Subdivision C—Sponsorship obligations 140H  Sponsorship obligations—general Requirement to satisfy sponsorship obligations  (1) A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations. Work agreements and sponsorship obligations  (2) However, if:  (a) a person (other than a Minister) is or was a party to a work agreement; and  (b) a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement; then, the person must satisfy the sponsorship obligation as so varied.  (a) a person (other than a Minister) is or was a party to a work agreement; and  (b) an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement; then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement. Sponsorship obligation regulations  (4) The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.  (5) Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.  (6) Different kinds of sponsorship obligations may be prescribed for:  (b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.  (7) The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention. 140HA  Sponsorship obligations—Minister’s responsibility  (1) Subject to subsection (2), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved work sponsor:  (a) paying a market salary rate (however described) to a visa holder;  (b) paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing a former visa holder from Australia;  (c) paying prescribed costs of the departure of a visa holder (or a former visa holder) from Australia;  (d) complying with prescribed requirements to keep information, and provide information to the Minister;  (e) notifying the Department of prescribed changes in the circumstances of the person, a visa holder or a former visa holder;  (f) cooperating with the exercise of powers under or for the purposes of Subdivision F (which deals with inspector powers);  (g) ensuring that a visa holder participates in an occupation, program or activity nominated by the person (including by preventing the on‑hire of a visa holder);  (h) requiring the person not to transfer, charge or recover prescribed costs;  (i) requiring the person to meet prescribed training requirements.  (2) For any particular matter mentioned in subsection (1), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:  (a) all approved work sponsors or former approved work sponsors; or  (b) a specified class (or classes) of approved work sponsors or former approved work sponsors, and not to all approved work sponsors or former approved work sponsors.  (2A) Subject to subsection (2B), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved family sponsor:  (aa) paying prescribed medical, hospital, aged care or other health‑related expenses incurred by a visa holder or a former visa holder;  (a) complying with prescribed requirements to keep information and provide information to the Minister;  (b) notifying the Minister of prescribed changes in the circumstances of the person, a visa holder or a former visa holder.  (2B) For any particular matter mentioned in subsection (2A), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:  (a) all approved family sponsors or former approved family sponsors; or  (b) a specified class (or classes) of approved family sponsors or former approved family sponsors.  (3) Subsections (1) and (2A) do not limit the sponsorship obligations that may be prescribed for the purposes of subsection 140H(1). 140J  Amounts payable in relation to sponsorship obligations  (1) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of:  (a) if a limit is prescribed by the regulations—that limit; and  (b) the actual costs incurred by the Commonwealth. Example: If the Commonwealth incurs costs in locating a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth).  (2) The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.  (3) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount. Subdivision D—Enforcement