(3A) The Minister may, in an instrument made for the purposes of paragraph (3)(b), specify any matters for the purposes of specifying the applicability of occupations to nominees as mentioned in paragraph (3)(ba), including (without limitation) matters relating to any of the following:
(a) the person who nominated the program of occupational training;
(b) the nominee;
(c) the occupation;
(d) the program of occupational training;
(e) the circumstances in which the occupation is undertaken;
(f) the circumstances in which the program of occupational training is undertaken.
Occupational training for capacity building overseas—overseas qualification
(4) This subregulation applies if the Minister is satisfied that:
(a) the nominee is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; and
(b) the occupational training is a structured workplace‑based training program specifically tailored to the training needs of the nominee.
Occupational training for capacity building overseas—government support
(5) This subregulation applies if the Minister is satisfied that:
(a) the occupational training is supported by a government agency, or by the government of a foreign country that is the home country of the nominee; and
(b) the occupational training is a structured workplace‑based training program that is:
(i) specifically tailored to the training needs of the nominee; and
(ii) of a duration that meets the specific training needs of the nominee.
Occupational training for capacity building overseas—professional development
(6) This subregulation applies if the Minister is satisfied that:
(a) the nominee:
(i) has an overseas employer; and
(ii) is in a managerial or professional position in relation to the overseas employer; and
(b) the occupational training is relevant to, and consistent with, the development of the managerial or professional skills of the nominee; and
(c) the occupational training will provide skills and expertise relevant to, and consistent with, the business of the overseas employer of the nominee; and
(d) the primary form of the occupational training is the provision of face‑to‑face teaching in a classroom or similar environment.
2.72C Criteria for approval of nomination—Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa
Application of this regulation
(1) This regulation applies in relation to a person who:
(a) is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations for a work agreement (other than a Minister); and
(b) under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to a holder of, or an applicant or proposed applicant for, a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa (the nominee).
(2) For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
General
(3) The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73B.
(4) The Minister is satisfied that either:
(a) there is no adverse information known to Immigration about the person or a person associated with the person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5) The Minister is satisfied that:
(a) if the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream—the person is a standard business sponsor other than an overseas business sponsor; or
(b) if the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Labour Agreement stream:
(i) the person is a party to a work agreement (other than a Minister); and
(ii) the 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 494 (Skilled Employer Sponsored Regional (Provisional)) visa.
(6) The Minister is satisfied that the position associated with the occupation is located at a place in a part of Australia that, when the nomination was made, was a designated regional area.
Note: A designated regional area is a part of Australia specified in an instrument under regulation 1.15M.
(7) The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
Information to be provided as part of nomination
(8) If the nominee holds a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, the Minister is satisfied that the person has listed on the nomination each other holder of that kind of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 494.311 of Schedule 2.
(9) However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
Nominated occupation
(10) The Minister is satisfied that:
(a) the occupation and its corresponding 6‑digit code correspond to an occupation and its corresponding 6‑digit code specified in:
(i) if the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream—the instrument made under subregulation (11) in force at the time the nomination is made; or
(ii) if the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Labour Agreement stream—the work agreement; and
(b) the occupation applies to the nominee in accordance with the instrument or work agreement.
(11) The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a) either:
(i) the 6‑digit ANZSCO code for the occupation; or
(ii) if there is no 6‑digit ANZSCO code for the occupation—a 6‑digit code for the occupation; and
(b) if there is no 6‑digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(c) any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(12) The Minister is satisfied that the position associated with the occupation is:
(a) genuine; and
(b) a full‑time position; and
(c) likely to exist for at least 5 years.
Additional requirements in relation to Employer Sponsored stream
(13) If:
(a) the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream; and
(b) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (14);
the Minister is satisfied that:
(c) the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(d) the person will give the Minister a copy of the contract signed by the nominee and the employer; and
(e) the terms and conditions of the nominee’s employment will not include an express exclusion of the possibility of extending the period of employment.
(14) The Minister may, by legislative instrument, specify occupations for the purposes of paragraph (13)(b) of this regulation, subregulation 2.73B(11), paragraphs 2.73B(12)(c) and 2.86(2B)(b) and (2BA)(b), clause 494.222 of Schedule 2 and paragraph 8608(3)(a) of Schedule 8.
(15) Subject to subregulation (16), if:
(a) the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream; and
(b) the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c) the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation 2.72(17); and
(d) the annual market salary rate, excluding any non‑monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e) the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)); and
(f) the nominee’s annual earnings, excluding any non‑monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d) of this subregulation; and
(g) either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16) However:
(a) the Minister may disregard the criterion in paragraph (15)(d) of this regulation if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation 2.72(17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d) of this regulation; and
(ii) it is reasonable in the circumstances to do so; and
(b) the Minister may disregard the criterion in paragraph (15)(f) of this regulation if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17) If the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream, the Minister is satisfied that:
(a) 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 nominee 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; and
(b) the person has not engaged in discriminatory recruitment practices.
(18) If the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Employer Sponsored stream, the Minister is satisfied that the Minister has been advised by a body that meets the requirements set out in subregulation (19) about whether the nominee would be paid at least the annual market salary rate for the occupation.
(19) For the purposes of subregulation (18), the body must:
(a) be specified by the Minister under subregulation (20); and
(b) be located in the State or Territory in which the position is located; and
(c) have responsibility for the part of Australia mentioned in subregulation (6).
(20) The Minister may, by legislative instrument, specify bodies for the purposes of paragraph (19)(a).
Additional requirements in relation to Labour Agreement stream
(21) If the occupation is nominated for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Labour Agreement stream, the Minister is satisfied that:
(a) the occupation is specified in the work agreement as an occupation that the person may nominate; and
(b) if the work agreement specifies requirements that must be met by a party to the work agreement—the requirements of the work agreement have been met; and
(c) the number of nominations in relation to Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas made by the person and approved by the Minister under section 140GB of the Act is less than the number of approved nominations in relation to visas of that type permitted under the work agreement for the year.
2.73 Process for nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Skills in Demand) 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;
(ab) a holder of a Subclass 482 (Skills in Demand) visa;
(b) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(c) an applicant or a proposed applicant for a Subclass 482 (Skills in Demand) 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 (Skills in Demand) visa in the Labour Agreement stream, the occupation must be nominated for a Subclass 482 (Skills in Demand) visa in:
(a) if the occupation is an occupation in Major Group 1, 2, 4, 5 or 6 in ANZSCO and the nominee’s annual earnings (excluding non‑monetary benefits) would be equal to or more than the specialist skills income threshold—the Specialist Skills stream; or
(b) if the occupation is an occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made and paragraph (a) of this subregulation does not apply in relation to the occupation—the Core Skills 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 (Skills in Demand) visa in the Core Skills 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;
(aa) if the occupation is nominated for a Subclass 482 (Skills in Demand) visa in the Specialist Skills stream—the name of the occupation, the corresponding 6‑digit code for the occupation and the Major Group in ANZSCO to which the occupation belongs;
(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 (Skills in Demand) visa; and
(ii) the occupation is nominated for a Subclass 482 (Skills in Demand) 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), the proposed period of stay may be 1, 2, 3 or 4 years provided the period of stay is not inconsistent with any international trade obligations of Australia.