Migration (Skilling Australians Fund) Charges Regulations 2018

The instrument revolves around four main technical concepts: nomination training contribution charge, annual turnover for a nomination, nomination day, and the visa- or nomination-specific formulae for calculating the charge.

• Nomination training contribution charge: The instrument operates under the Act’s framework for a "nomination training contribution charge" and implements s 8(1) of the Act by prescribing amounts for specified nomination types (see ss 5, 5A, 6). The regulations do not redefine or reallocate liability; they set the payable amounts to be applied to nominations of the kinds referenced in subsection 140ZM(1) and 140ZM(2) of the Migration Act (notes in ss 5 and 6).

• Annual turnover, for a nomination (s 4): The prescriptive test bifurcates on whether the person liable operates a business in Australia. If they do, annual turnover is the total ordinary income as defined in the Income Tax Assessment Act 1997 for the most recent income year ending before the nomination day. If they do not operate a business in Australia, the test is the total income the person derived in the ordinary course of business in the most recent financial year ending before the nomination day. The instrument therefore imports tax-law definitions for the Australian-case and a business-income measure for non-Australia cases.

• Nomination day (s 4): The term is fixed to a specific administrative event: either the day the nomination is made under s 140GB of the Migration Act or the day the application for approval of the nomination is made under reg 5.19 of the Migration Regulations. That choice of moment fixes which financial year or income year is the most recent when calculating annual turnover.

• Calculative formulae by visa subclass:

  • Subclasses 457 and 482 (s 5): The regulations provide a base amount (either $1,200 or $1,800 depending on the turnover threshold) and state the payable amount is worked out using a formula that takes into account the base amount and the visa period (s 5(2)). The instrument identifies the visa period as the number of years in the period of stay proposed in the nomination and notes that the proposed period may be 1, 2, 3 or 4 years (see subregulation 2.73(10) of the Migration Regulations, cited in the note).
  • Subclass 494 (s 5A): For holders (paragraph (1)(a)), the charge is the base amount multiplied by a prorating fraction that uses elapsed whole years since visa grant (s 5A(2)). For applicants (paragraph (1)(b)) the instrument prescribes a flat base amount (s 5A(3)). Base amounts here are higher: $3,000 for turnover below $10,000,000 and $5,000 otherwise.
  • Subclasses 186 and 187 (s 6): The amount is flat , $3,000 or $5,000 depending on turnover , unless the specified Labour Agreement/ministry-of-religion exception applies (s 6(2)-(3)).

Each of these concepts is linked to a nominee’s timing and financial profile and to procedural events (nomination lodgement or approval application). The instrument therefore works as a rulebook for converting those observable facts into a monetary charge.

The regulations affect persons who are liable to pay a nomination training contribution charge in relation to an employer nomination, across a limited set of visa subclasses. The text repeatedly identifies "the person liable to pay nomination training contribution charge in relation to the nomination" as the actor whose annual turnover is used in the calculation (s 4 and the definitions embedded in ss 5, 5A, 6). The instrument does not itself define that liability; that is a matter for the Act. Practically, the affected parties are employers or nominators making nominations under the specified Migration Act provisions, or the persons who, under the Act, are legally liable to pay the charge.

The instrument distinguishes between categories of nominations and visa-holders or applicants, so the impact is not uniform:

• Employers nominating for temporary skilled visas covered by subsection 140ZM(1) of the Migration Act , specifically Subclass 457 and Subclass 482 (including Subclass 482 (Skills in Demand) and applicants for that visa) , will face a charge calculated by reference to a base amount and the proposed visa period (s 5). Employers that nominate for longer proposed periods will see the visa-period factor affect the payable sum; the instrument ties the proposed period to the nomination record (s 5(2) and the Migration Regulations note).

• Employers nominating for Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) affect two groups: current holders of the subclass being re-nominated (paragraph 1(a)), and applicants or proposed applicants (paragraph 1(b)). Holders face a prorated amount reflecting elapsed whole years since visa grant (s 5A(2)); applicants face the full base amount (s 5A(3)).

• Employers nominating for employer-sponsored permanent visas (Subclasses 186 and 187) will incur a fixed charge depending on the turnover threshold (s 6(2)).

• The Labour Agreement stream for certain subclasses is explicitly treated differently for a narrow class of occupations: a nomination in a Labour Agreement stream where the proposed or identified occupation is minister of religion or religious assistant produces a nil charge under the relevant clause (ss 5(3), 5A(4), 6(3)). Therefore employers in that stream and with those occupations are excluded from payment by the text of the instrument.

Affected entities must compute and document annual turnover as of the nominated date. The definitions require looking to the "most recent income year" ending before the nomination day (s 4), so the timing of the nomination influences which financial data are relevant. Where the person operates a business in Australia, ordinary income as defined in the Income Tax Assessment Act 1997 is the measure; that binds the computation to tax reporting categories. Where the person does not operate a business in Australia, the instrument requires an alternative business-income measure. Thus the instrument affects entities by imposing recordation and evidentiary obligations implicit in those tax-linked definitions.

Finally, because the instrument is limited in scope to specified subclasses and to nominations of kinds identified in the Migration Act, persons outside those nomination types are unaffected by the amounts here. The instrument does not alter underlying liability rules; it sets only the amounts to be applied where liability exists under the Act.

The instrument creates duties of calculation and disclosure rather than novel substantive obligations. Its operative provisions impose duties on the person liable to pay the nomination training contribution charge to determine the correct amount payable for a nomination by applying the prescribed base amounts and formulae. The duties and consequential rights, as reflected in the text, include:

• Duty to determine applicable nomination type and timing: A party must first determine whether the nomination falls within subsection 140ZM(1) (temporary visas) or subsection 140ZM(2) (permanent visas) of the Migration Act, because the instrument prescribes different amounts and formulae for those kinds of nominations (see s 5 note and s 6 heading).

• Duty to identify nomination day: The calculation depends on the nomination day, defined as either the day the nomination is made under s 140GB of the Migration Act or the day the application for approval of the nomination is made under reg 5.19 of the Migration Regulations (s 4). This duty determines which income year or financial year is the "most recent" for turnover calculations.

• Duty to calculate annual turnover per the instrument’s rules: If the person operates a business in Australia, they must use "total ordinary income" within the meaning of the Income Tax Assessment Act 1997 for the most recent income year ending before the nomination day; otherwise they must use "the total income the person ... derived in the ordinary course of business" for the most recent financial year ending before the nomination day (s 4). This imports tax-law concepts into the duty to calculate the turnover threshold.

• Duty to apply the correct base amount and formula for the visa subclass: The person must choose the correct section (s 5 for Subclasses 457/482; s 5A for Subclass 494; s 6 for Subclasses 186/187) and apply the prescribed base amount ($1,200/$1,800; $3,000/$5,000; $3,000/$5,000 respectively) depending on whether the annual turnover is less than $10,000,000 or not (ss 5, 5A, 6).

• Duty to compute ancillary variables: For s 5 the person must determine the visa period (number of years proposed in the nomination) and for s 5A(2) the person must determine the elapsed years in visa period (number of whole years between date of grant and nomination day). The instrument references the Migration Regulations for permitted proposed periods (s 5(2) note citing subregulation 2.73(10)).

• Duty to check for exemptions: The person must check whether the nomination is in the Labour Agreement stream and whether the proposed or identified occupation is minister of religion or religious assistant, in which case the amount is nil under the relevant subsection (ss 5(3), 5A(4), 6(3)). The exact textual trigger differs slightly among provisions (for 186 the wording is "the application for approval of the nomination identifies the occupation" (s 6(3)); for 482/494 the wording is "the proposed occupation is" (ss 5(3), 5A(4))), so the duty includes attention to timing and phrasing.

The instrument does not create express rights such as refunds, offsets or appeals within its text. It specifies only amounts to be applied under the Act. Any rights to administrative review, objections, refunds or offsetting would arise under the Act or other instruments; the regulation itself does not set those processes. The instrument also does not create any standalone enforcement powers or specify penalties for non-payment; enforcement and collection are matters for the Act and other legislation rather than for these regulations.

Consequently, affected persons’ practical rights and duties involve accurate calculation, proper documentation of turnover, nomination timing, visa period and elapsed years, and the demonstration of any relevant Labour Agreement/occupation exemption when making or seeking approval of a nomination.

This instrument does not itself prescribe criminal, civil or administrative penalties, nor does it set enforcement mechanisms for non-payment. It is explicit in form and scope: it prescribes amounts "for the purposes of subsection 8(1) of the Act" (see ss 5, 5A, 6) and is made under the Migration (Skilling Australians Fund) Charges Act 2018 (s 3 Authority). The regulations therefore operate as an implementing schedule for amounts; they do not contain provisions addressing collection procedures, sanctioning powers, administrative prosecution, or dispute-resolution processes.

Because the instrument is silent on enforcement in the text provided, enforcement and penalty mechanisms must be located in the enabling Act or in other migration or financial administration laws. The instrument’s structure signals this separation: the Act provides the substantive charging power and liability framework, while the regulations specify the numerical amounts to be applied under that framework. Any consequences for failing to pay the charge, defences, remissions, time limits for payment, or recovery processes would be matters to examine in the Act and associated administrative instruments, not in this regulation text.

Practitioners or nominators therefore face two practical implications from the lack of penalties or enforcement details in the regulation. First, the calculation of the correct amount is necessary because failure to pay or short payment will likely be addressed under separate legal provisions that govern collection and compliance. Second, any query about remission, offset, or appeal against the applied amount will have to be pursued under the Act or other instruments that set out procedural remedies. The instrument does not identify which government agency will collect the charge; such operational detail is not included in the text.

Finally, it is relevant that the instrument refers to external tax and migration instruments in its calculations (Income Tax Assessment Act 1997 and the Migration Regulations 1994). Any enforcement action that requires evidentiary proof will therefore implicate documents and records that those instruments and administrative regimes govern (for example, tax returns, nomination forms and visa grant records).

The regulations are explicitly cross-referential. They do not stand alone; the instrument ties the calculation of the nomination training contribution charge to definitions and procedural provisions in the Migration Act, the Migration Regulations 1994, and the Income Tax Assessment Act 1997. The text creates an interlocking rule set across these instruments.

• Migration Act 1958 (and its internal provisions): The instrument is made under the Migration (Skilling Australians Fund) Charges Act 2018 (s 3), and repeatedly identifies nominations of the kinds mentioned in subsection 140ZM(1) and subsection 140ZM(2) of the Migration Act as the subject of the prescribed amounts (see notes in ss 5 and 6). It also fixes the nomination day to specified procedural events in the Migration Act and Migration Regulations (s 4). Therefore the instrument’s application cannot be determined without reference to the Migration Act’s definitions of nominations, and the Act determines who is the person liable to pay the charge. The regulations supplement the Act’s charging power by providing the numeric inputs for that power.

• Migration Regulations 1994: The instrument’s notes and operative definitions use the Migration Regulations for two concrete points. First, it notes that nominations of a kind mentioned in subsection 140ZM(1) of the Migration Act relate to temporary visas and refers to regulation 5.42 of the Migration Regulations (ss 5 and 5A notes). Second, the instrument explicitly refers to subregulation 2.73(10) of the Migration Regulations to determine that the proposed period of stay for the purposes of s 5 may be 1, 2, 3 or 4 years (s 5(2) note). The nomination day is linked to the application for approval of the nomination under regulation 5.19. In short, the Migration Regulations supply timing, visa-period bounds and procedural events that feed directly into the arithmetic in this instrument.

• Income Tax Assessment Act 1997: The definition of annual turnover for persons operating a business in Australia imports the tax-law concept of "total ordinary income" from the Income Tax Assessment Act 1997 (s 4). That legal cross-reference anchors the calculation to a statutory tax measure rather than to an accounting or management definition of turnover. This has consequences for how turnover is established in audit or dispute: tax returns and the ordinary income concept under tax law will be the primary evidence.

• Other statutes and administrative rules governing the Act: Although not named in the text, the instrument’s status as an implementation of s 8(1) of the Act implies that collection, remission, and enforcement are governed by the Act and any other relevant financial administration statutes. The instrument does not itself modify or override those processes; it supplies only numerical inputs.

These interactions produce several practical effects. Calculating the charge requires reconciling migration procedural dates with tax reporting periods. The timing of nomination affects which income year is the "most recent" for turnover calculations. Determining whether an entity "operates a business in Australia" will interact with tax residency and business registration statuses. The instrument’s exemptions hinge on Labour Agreement streams defined in the Migration Act and Regulations, so assessing entitlement to the nil amount requires checking those instruments. Finally, because the instrument imports definitions from other statutes, disputes or audits will require reference to the bodies responsible for those regimes (tax office, migration decision-makers).

The instrument identifies itself by name in s 1 as "the Migration (Skilling Australians Fund) Charges Regulations 2018." Other than that nomenclature, the text contains no internal schedule or marginal notes indicating subsequent amendments, repeal, saving, commencement or expiry provisions within the excerpt provided. Section 3 states the authority: the regulations are made under the Migration (Skilling Australians Fund) Charges Act 2018. No dates, amendment numbers, Gazette notices or saving clauses appear in the supplied text.

Consequently, the only recorded historical fact within the instrument is its 2018 identity and its making under the 2018 Act. There is no internal record in the text supplied of earlier or later amendments, transitional provisions, or repeals. Practitioners relying on this instrument should therefore confirm the current status and any amending instruments by consulting the official legislative database or the Federal Register of Legislation, because the text provided here does not display any amendment annotations or history.

Where an instrument prescribes monetary amounts it is common practice for later amendments to adjust figures or thresholds. Because the instrument links to external definitions (for example the Income Tax Assessment Act 1997 and the Migration Regulations), any amendment to those instruments may also change how parts of this regulation operate in practice. The supplied text does not, however, contain amendment or commencement provisions to indicate whether the figures were staged or subject to change.

The excerpted instrument contains no reference to judicial decisions, administrative tribunal determinations, or litigation. It names no case law and records no past disputes or judicial interpretation. The regulations themselves are a set of numerical and definitional prescriptions; the text supplies no litigative background or precedent.

For legal research or advisory work, that absence means two things. First, guidance as to how courts or tribunals will interpret the instrument in disputed cases is not available in the instrument itself. Second, because the instrument incorporates external statutory concepts (for example, "total ordinary income" under the Income Tax Assessment Act 1997 and nomination mechanics under the Migration Act and Migration Regulations), relevant litigation about how those external concepts apply in particular fact patterns may be material,but such litigation is not recorded in the regulation text provided here.

In short, there is no litigation history contained in the instrument text. Any case law interpreting the calculation of nomination training contribution charges, the meaning of "annual turnover" for this purpose, or disputes over Labour Agreement stream exemptions would need to be sourced from external case law reporters and tribunal records, none of which are present in the supplied regulations.

The instrument contains a number of drafting and operational features likely to produce practical pitfalls if not attended to carefully. The following points are grounded in the text and highlight specific places where mistakes, timing mismatches or interpretive disputes are likely to arise.

• Timing of the "most recent" income year or financial year: Annual turnover is expressly tied to the most recent income year (for Australian businesses) or the most recent financial year (for other persons) ending before the nomination day (s 4). The nomination day itself is tied to specific procedural events (either the day the nomination is made under s 140GB of the Migration Act or the day the application for approval of the nomination is made under reg 5.19 of the Migration Regulations (s 4)). Small differences in when a nomination is lodged may therefore change which tax year is the "most recent" and thus change whether a person falls below or above the $10,000,000 threshold. Practitioners must therefore control nomination timing if the turnover boundary is material.

• Distinct definitions depending on Australian business operation: The test for annual turnover bifurcates on whether the person "operates a business in Australia." For entities operating in Australia, the measure is "total ordinary income" as per the Income Tax Assessment Act 1997; for others, it is "the total income the person ... derived in the ordinary course of business." Those two measurements can produce different numerical outcomes and different evidentiary requirements. Tax documentary evidence will be central for the Australian-business path.

• Threshold arithmetic and tax accounting definitions: The instrument imports "total ordinary income" from the Income Tax Assessment Act 1997 (s 4). That phrase has a specific tax meaning which may include or exclude items differently from accounting turnover or sales revenue. Using incorrect accounting metrics instead of the statutory tax construct could produce miscalculation and consequent compliance issues.

• Differing textual triggers for nil exemption across sections: The instrument provides a nil amount for Labour Agreement nominations where the proposed or identified occupation is minister of religion or religious assistant (ss 5(3), 5A(4), 6(3)). However the precise drafting varies: s 5(3) and s 5A(4) refer to the nomination being "for a Subclass ... visa in the Labour Agreement stream" and "the proposed occupation is minister of religion or religious assistant"; s 6(3) refers to "the nomination relates to a Subclass 186 ... in the Labour Agreement stream" and "the application for approval of the nomination identifies the occupation of minister of religion or religious assistant." The distinction between "proposed occupation is" and "the application ... identifies the occupation" could generate timing or evidentiary arguments about when and how the occupation is identified for the exemption.

• Prorating formula for Subclass 494 holders and boundary behaviour: The Subclass 494 holder formula (s 5A(2)) multiplies a base amount by a fraction that depends on "elapsed years" (the number of whole years from visa grant to nomination day). The formula’s structure (base × (5 − elapsed years)/5) yields different results as elapsed years increases and implies a zero multiplier when elapsed years equals five. The instrument does not elsewhere state an explicit floor or cap in the text excerpt provided; if elapsed years equals or exceeds five the arithmetic would give a zero or non‑positive multiplier, which the instrument does not expressly address. Practitioners should therefore calculate elapsed years as defined (whole years) and be aware of the potential for the multiplier to reduce the charge to nil at particular elapsed-year values.

• Different treatment of holders versus applicants for Subclass 494: Paragraphs 5A(2) and 5A(3) treat visa holders and applicants differently: holders have a prorated amount, while applicants face the full base amount. The practical consequence is that timing of nomination relative to grant of the underlying visa materially affects the payable charge. That generates behavioural incentives around the timing of nominations and may require careful client advice.

• Visa period discrete values for Subclasses 457/482: The visa period used in s 5(2) is the number of years in the period of stay proposed in the nomination; the instrument notes the proposed period may be 1, 2, 3 or 4 years (citation to subregulation 2.73(10) of the Migration Regulations). The discrete permitted values mean the visa-period factor is not continuous; a nomination proposing a longer period within the allowable range will increase the payable amount under s 5(2). Practitioners should check the Migration Regulations to confirm permissible proposed periods before performing the calculation.

• Evidence and record-keeping expectations implicit but not detailed: By tying calculations to tax-year data, visa grant dates and nomination documents, the instrument implicitly requires documentary proof (tax returns, nomination forms, visa grant notices). The regulation does not prescribe what constitutes sufficient evidence, so parties should retain contemporaneous documents attesting to nomination day, visa grant dates and tax filings.

• No procedural guidance on payment, refund or dispute in the regulation: The instrument does not set out when payment is due, the method of payment, or remedies if the amount was incorrectly calculated. Those matters presumably arise under the Act or administrative practice. Absence of such guidance in the regulation is a practical gotcha during transactional planning.

Attending to these specific drafting links and timing rules will reduce the risk of miscalculation and of unexpected exposure to charge liabilities.

Compliance with the instrument requires an administrative workflow that connects migration procedural steps to specific financial calculations using tax-based measures and visa-history facts. The following steps, grounded in the regulation’s text, set out a practical compliance checklist.

1. Identify the nomination type and statutory hook.

   • Confirm whether the nomination is of the kind mentioned in subsection 140ZM(1) (temporary visas) or subsection 140ZM(2) (permanent visas) of the Migration Act, since ss 5, 5A and 6 apply to different classes (see notes to ss 5 and 6).
   • Determine the precise visa subclass involved (Subclasses 457, 482, 494, 186 or 187) and whether the nomination sits in a Labour Agreement stream.

2. Fix the nomination day.

   • Establish whether the nomination day is the day the nomination is made under s 140GB of the Migration Act or the day the application for approval of the nomination is made under regulation 5.19 of the Migration Regulations (s 4). Use that date for all "before the nomination day" timing references.

3. Determine the person liable to pay the charge.

   • Identify who, under the Act, is the "person liable to pay nomination training contribution charge in relation to the nomination." The regulations apply the annual turnover test to that person (see s 4). The Act determines legal liability; confirm who that is in the client’s circumstances.

4. Calculate annual turnover for the nomination.

   • If the person operates a business in Australia, compute the total ordinary income for the most recent income year ending before the nomination day, using the Income Tax Assessment Act 1997 definition (s 4). Use tax-return figures and associated workpapers to substantiate this figure.
   • If the person does not operate a business in Australia, compute total income derived in the ordinary course of business in the most recent financial year ending before the nomination day (s 4). Maintain documentary evidence that supports the chosen measurement.
   • Compare the resulting figure to the $10,000,000 threshold to select the applicable base amount.

5. Apply the correct section and numeric rule.

   • For Subclasses 457 and 482 (s 5): identify the base amount ($1,200 if turnover < $10m; $1,800 otherwise). Determine the visa period proposed in the nomination (1-4 years per Migration Regulations) and apply the prescribed formula to compute the amount payable (s 5(2)). Ensure the visa-period selection in the nomination matches the number used in the calculation.
   • For Subclass 494 (s 5A): if the person is a visa holder (paragraph (1)(a)), compute elapsed years as the number of whole years from date of visa grant to the nomination day (s 5A(2)), then apply the prorating fraction (base × (5 − elapsed years)/5). If the person is an applicant or proposed applicant (paragraph (1)(b)), apply the flat base amount (s 5A(3)). Use visa grant documentation to support elapsed-years computation.
   • For Subclasses 186 and 187 (s 6): apply the flat base amount ($3,000 if turnover < $10m; $5,000 otherwise) (s 6(2)).

6. Check for the Labour Agreement/ministry-of-religion exemption.

   • Determine whether the nomination is in the Labour Agreement stream and whether the proposed (or identified) occupation is minister of religion or religious assistant. If so, apply the nil amount per the relevant subsection (ss 5(3), 5A(4), 6(3)). Ensure the occupation is recorded in the nomination or application form in the manner the subsection requires (note textual differences in wording across ss 5, 5A, 6).

7. Document supporting evidence.

   • Retain tax returns, financial statements, proof of electoral or business registration (if needed to demonstrate operating a business in Australia), nomination lodgement records, visa grant notices and any Labour Agreement documentation. Because the instrument anchors calculations to those documentary facts, preserve a contemporaneous audit trail.

8. Liaise with migration advisers and tax advisers.

   • Because the instrument imports tax definitions and migration timing rules, coordinate with tax advisers to confirm the ordinary income calculation and with migration advisers to confirm nomination day and visa-period details. This reduces the risk of misapplication of the turnover threshold or visa-period value.

9. Address payment logistics under the Act.

   • The regulation does not set payment mechanics or enforcement. Consult the Act and departmental guidance for payment timing, collection procedures, and remedies for incorrect charges.

10. Recalculate if facts change before payment or approval.

• Where nomination timing, visa grant dates or financial statements are updated before finalisation, recompute the charge using the updated "most recent" year or elapsed years as defined. The instrument ties the calculation to fixed temporal events, so late changes can alter the payable amount.

Following these steps will align an affected person’s internal processes with the regulation’s textual requirements. The core compliance burdens are record-gathering tied to tax-year data, precise attention to nomination timing, and ensuring nomination documentation records occupations and visa-periods in forms that match the calculation inputs the instrument requires.