(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; and
(iv) the words in paragraph 2.72(15)(d) were replaced with “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 amount of the core skills income threshold”; and
(v) the words in paragraph 2.72(15)(f) were replaced with “the identified person’s annual earnings, excluding any non‑monetary benefits, in relation to the occupation will not be less than the amount of the core skills income threshold”; and
(vi) the words in subparagraph 2.72(16)(a)(i) were replaced with “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 amount of the core skills income threshold”;
(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 reviewable migration 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 reviewable migration 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.
5.19A Designated investment
(1) Subject to subregulation (2), the Minister may, by legislative instrument, specify a security issued by an Australian State or Territory government authority as a security in which an investment is a designated investment for the purposes of a Part of Schedule 2.
(2) The Minister may so specify a security if and only if:
(a) an investment in the security matures in not less than 4 years from its date of issue; and
(b) repayment of principal is guaranteed by the issuing authority; and
(c) an investment in the security cannot be transferred or redeemed before maturity except by operation of law or under other conditions acceptable to the Minister; and
(d) investment in the security is open to the general public at commercially competitive rates of return; and
(e) the Minister is satisfied that the Commonwealth will not be exposed to any liability as a result of an investment in the security by a person.
5.19B Complying investment
(1) An investment by a person (the investor) is a complying investment if all of the requirements in this regulation are met.
Description
(2) The investment must consist of one or more of the following:
(a) an investment in a government bond (however described) of the Commonwealth, a State or Territory; or
(b) a direct investment in an Australian proprietary company that meets the following requirements:
(i) the company is not listed on an Australian stock exchange;
(ii) the company has not been established wholly or substantially for the purpose of creating compliance with this paragraph;
(iii) the investment is an ownership interest in the company;
(c) an investment in a managed fund (directly or through an investor directed portfolio service) for a purpose specified by the Minister in an instrument, in writing, for this paragraph.
(3) The funds used to make the investment are:
(a) unencumbered; and
(b) lawfully acquired.
Investor
(4) The investor must be an individual.
(5) The investor must make the investment:
(a) personally; or
(b) with the investor’s spouse or de facto partner; or
(c) by means of a company that has issued shares and in which:
(i) the investor holds all of the issued shares; or
(ii) the investor and the investor’s spouse or de facto partner hold all of the issued shares; or
(d) by means of a trust:
(i) that is lawfully established; and
(ii) of which:
(A) the investor is the sole trustee; or
(B) the investor and the investor’s spouse or de facto partner are the sole trustees; and
(iii) of which:
(A) the investor is the sole beneficiary; or
(B) the investor and the investor’s spouse or de facto partner are the sole beneficiaries.
(6) If:
(a) an investor withdraws money from a complying investment, or cancels the investment; and
(b) the investor makes an investment of at least the value of the withdrawn money or cancelled investment in one or more other investments mentioned in subregulation (2); and
(c) no more than 30 days passes between the events mentioned in paragraphs (a) and (b);
the investment is taken not to have ceased to be a complying investment during the period between the events mentioned in paragraphs (a) and (b).
5.19C Complying significant investment
Definition
(1) An investment by a person (the investor) is a complying significant investment if all of the requirements of this regulation are met.
(2) If an investment (the overall investment) is based on one or more other investments, this regulation (and any instrument under subregulation (6)) applies equally to the overall investment and each investment on which the overall investment is based.
Investment requirements
(3) All funds used to make the investment must be unencumbered and lawfully acquired.
(4) The investment:
(a) must be lawful; and
(b) must not form the basis for security or collateral for a loan.
(5) The investment, and the means by which the investment is made:
(a) must be of a kind permitted by the requirements specified in an instrument under subregulation (6); and
(b) must comply with any requirements specified in an instrument under subregulation (6).
(6) The Minister may, by legislative instrument, specify requirements for the purposes of subregulation (5).
Investment switching periods
(7) Subregulation (8) applies in relation to a period (the switching period):
(a) beginning when the investor withdraws funds from the investment, or cancels the investment; and
(b) ending when the investor reinvests the withdrawn funds, or the funds used to make the cancelled investment.
(8) If the switching period is of no more than 30 days duration, the investment is taken not to have ceased to be a complying significant investment during the switching period only because of the event mentioned in paragraph (7)(a).
Investor requirements
(9) The investor must be an individual.
(10) The investor must make the investment:
(a) personally; or
(b) with the investor’s spouse or de facto partner; or
(c) by means of a company that has issued shares and in which:
(i) the investor holds all of the issued shares; or
(ii) the investor and the investor’s spouse or de facto partner hold all of the issued shares; or
(d) by means of a trust to which the following applies:
(i) the trust is lawfully established;
(ii) the investor is the sole trustee or the investor and the investor’s spouse or de facto partner are the sole trustees;
(iii) the investor is the sole beneficiary or the investor and the investor’s spouse or de facto partner are the sole beneficiaries.
5.19D Complying premium investment
Definition
(1) An investment or a philanthropic contribution, or a combined investment and philanthropic contribution, by a person (the investor) is a complying premium investment if all of the requirements of this regulation are met.
(2) If an investment (the overall investment) is based on one or more other investments, this regulation (and any instrument under subregulation (8)) applies equally to the overall investment and each investment on which the overall investment is based.
(3) If a philanthropic contribution (the overall contribution) is based on one or more other philanthropic contributions, this regulation applies equally to the overall contribution and each philanthropic contribution on which the overall contribution is based.
Investment and philanthropic contribution requirements
(4) All funds used to make an investment or philanthropic contribution (or both) must be unencumbered and lawfully acquired.
(5) An investment or philanthropic contribution (or both):
(a) must be lawful; and
(b) must not form the basis for security or collateral for a loan.
Philanthropic contribution requirement
(6) A philanthropic contribution must be approved for this regulation, in writing, by a State or Territory government agency.
Investment requirements
(7) An investment, and the means by which an investment is made:
(a) must be of a kind permitted by the requirements specified in an instrument under subregulation (8); and
(b) must comply with any requirements specified in an instrument under subregulation (8).
(8) The Minister may, by legislative instrument, specify requirements for the purposes of subregulation (7).
Investment switching periods
(9) Subregulation (10) applies in relation to a period (the switching period):
(a) beginning when the investor withdraws funds from an investment, or cancels an investment; and
(b) ending when the investor reinvests the withdrawn funds, or the funds used to make the cancelled investment.
(10) If the switching period is of no more than 30 days duration, the investment (whether or not combined with a philanthropic contribution) is taken not to have ceased to be a complying premium investment during the switching period only because of the event mentioned in paragraph (9)(a).
Investor requirements
(11) The investor must be an individual.
(12) The investor must make an investment or philanthropic contribution (or both):
(a) personally; or
(b) with the investor’s spouse or de facto partner; or
(c) by means of a company that has issued shares and in which:
(i) the investor holds all of the issued shares; or
(ii) the investor and the investor’s spouse or de facto partner hold all of the issued shares; or
(d) by means of a trust to which the following applies:
(i) the trust is lawfully established;
(ii) the investor is the sole trustee or the investor and the investor’s spouse or de facto partner are the sole trustees;
(iii) the investor is the sole beneficiary or the investor and the investor’s spouse or de facto partner are the sole beneficiaries.
5.19E Complying entrepreneur activity
(1) An activity that an applicant for a visa is undertaking, or proposing to undertake, is a complying entrepreneur activity if all the requirements set out in this regulation are met.
Note: For the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Entrepreneur stream, the applicant must be undertaking, or proposing to undertake, a complying entrepreneurial activity (see Subdivision 188.28 of Schedule 2).
(2) The activity:
(a) relates to an innovative idea that is proposed to lead to:
(i) the commercialisation of a product or service in Australia; or
(ii) the development of an enterprise or business in Australia; and
(b) does not relate to an activity specified, whether individually or by class, in an instrument under subregulation (6).
(3) If the applicant is invited to apply for the visa before 1 July 2021, all of the following apply:
(a) funding in relation to the activity is to be provided to any of the following (the entrepreneurial entity):
(i) the applicant;
(ii) a body corporate;
(iii) a partnership;
(b) the funding is to be provided under one or more legally enforceable agreements in effect between the entrepreneurial entity and one or more entities covered by subregulation (5);
(c) if the applicant is not the entrepreneurial entity—the applicant personally held, at the time the agreement or each agreement was entered into, at least a 30% share in the ownership of the entrepreneurial entity;
(d) the total amount of the funding provided or to be provided under the agreement or agreements is at least $200,000;
(e) under the agreement or each agreement, at least 10% of the funding is to be paid to the entrepreneurial entity within 12 months of the day the activity starts to be undertaken in Australia;
(f) there is in place a business plan for the entrepreneurial entity that the Minister considers to be appropriately formulated to lead to a result mentioned in subparagraph (2)(a)(i) or (ii);
(g) all of the funding provided or to be provided to the entrepreneurial entity under the agreement or agreements is unencumbered and lawfully acquired.