(a) a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.
(3) If:
(a) a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and
(b) the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
(4) If:
(a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and
(b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;
the cancellation under subsection (1), (2) or (3) is revoked.
Division 3A—Sponsorship
Subdivision A—Preliminary
140A Division applies to prescribed kinds of visa
This Division applies to visas of a prescribed kind (however described).
140AA Purposes of this Division
(1) The purposes of this Division, to the extent it applies in relation to the temporary sponsored work visa program, are as follows:
(a) to provide a framework for the program in order to address genuine skills shortages;
(b) to address genuine skills shortages in the Australian labour market:
(i) without displacing employment and training opportunities for Australian citizens and Australian permanent residents (within the meaning of the regulations); and
(ii) without the program serving as a mainstay of the skilled migration program;
(c) to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non‑citizens sponsored to work in Australia under the program;
(d) to impose obligations on work sponsors to ensure that:
(i) non‑citizens sponsored to work in Australia under the program are protected; and
(ii) the program is not used inappropriately;
(e) to enable monitoring, detection, deterrence and enforcement in relation to any inappropriate use of the program;
(f) to give Fair Work Inspectors (including the Fair Work Ombudsman) and inspectors appointed under this Division the necessary powers and functions to investigate compliance with the program.
(2) The purposes of this Division, to the extent it applies in relation to the sponsored family visa program, are:
(a) to strengthen the integrity of the program; and
(b) to place greater emphasis on the assessment of persons as family sponsors; and
(c) to improve the management of family violence in the delivery of the program.
(3) The purposes referred to in subsection (2) are to be achieved by establishing a framework that:
(a) requires the approval of persons as family sponsors before any relevant visa applications are made; and
(b) imposes obligations on persons who are or were approved family sponsors; and
(c) provides for sanctions if such obligations are not satisfied; and
(d) facilitates the sharing of personal information in accordance with this Division.
140AB Ministerial Advisory Council on Skilled Migration
(1) The Minister must take all reasonable steps to ensure that, at all times, there is in existence a council that:
(a) is known as the Ministerial Advisory Council on Skilled Migration; and
(b) is established under the executive power of the Commonwealth; and
(c) includes representatives of unions, industry and State and Territory governments and other members (if any) nominated by the Minister; and
(d) meets at least quarterly.
(2) Without limiting its functions apart from this section, the Ministerial Advisory Council on Skilled Migration is to provide advice to the Minister in relation to the temporary sponsored work visa program.
Subdivision B—Approval of sponsors
140E Minister to approve work and family sponsors
(1) The Minister must approve a person as a work sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
Note: A person (other than a Minister) who is a party to a work agreement is an approved work sponsor and does not need to be approved as a work sponsor under this section (see paragraph (b) of the definition of approved work sponsor).
(1A) The Minister must approve a person as a family sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
(2) The regulations must prescribe classes in relation to which a person may be approved as a work sponsor or family sponsor.
(3) Different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a work sponsor or family sponsor; and
(c) different classes of person within a class in relation to which a person may be approved as a work sponsor or family sponsor.
140F Approval process
(1) The regulations may establish a process for the Minister to approve a person as a work sponsor or family sponsor.
(2) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a work sponsor or family sponsor.
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:
(a) different kinds of visa (however described); and
(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:
(a) different kinds of visa (however described); and
(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:
(a) different kinds of visa (however described); and
(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
Scope
(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.
Definitions
(7) In this section:
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
Scope
(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).