Nomination

5.19 Approval of nominated positions (employer nomination)

(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2) The application must:

(a) be made in accordance with approved form 1395; and

(b) be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii) identifies an occupation, in relation to the position, that:

(A) is listed in ANZSCO; and

(B) has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and

(b) the nominator:

(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii) is actively and lawfully operating a business in Australia; and

(c) either:

(i)

(A) the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a) (ii) has been employed in the position in respect of which the person holds a Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application; and

(B) the employment in the position has been full time, and undertaken in Australia; or

(ii) all of the following apply:

(A) the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72 (10) (d) (iii) (B) [medical occupations] or sub-subparagraph 2.72 (10) (e) (iii) (B);

(B) the nominator nominated the occupation;

(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d) for a person to whom subparagraph (c) (i) applies:

(i) the person will be employed on a full-time basis in the position for at least 2 years; and

(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f)[4] either:

(i) the nominator:

(A) fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

(ii) it is reasonable to disregard subparagraph (i); and

(g) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

Direct Entry nomination

(4) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

(b) the nominator:

(i) is actively and lawfully operating a business in Australia; and

(ii) directly operates the business; and

(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

(d) both of the following apply:

(i) the employee will be employed on a full-time basis in the position for at least 2 years;

(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

(h) either:

(i) both of the following apply:

(A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(B) either:

(I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

(II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

[RSMS]

(ii) all of the following apply:

(A) the position is located in regional Australia;

(B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

[BEFORE 1 July 2015] – (D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

[POST 1 July 2015]

(D) the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writingfor this sub-subparagraph;

(E) the business operated by the nominator is located at that place;

(F) a body that is:

(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

(II) located in the same State or Territory as the location of the position;

has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

(5) The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

(6) As soon as practicable after deciding a nomination, the Minister must give the nominator:

(a) a copy of the written approval or refusal; and

(b) if the Minister refuses the nomination:

(i) a written statement of the reasons why the nomination was refused; and

(ii) a written statement that the decision is an MRT reviewable decision.

Note Division 4.1 deals with review of decisions. Paragraph 4.02 (4) (e) provides that a decision under regulation 5.19 to reject an application is an MRT reviewable decision. MRT reviewable decision is defined in Division 2 of Part 5 of the Act.

(7) In this regulation:

adverse information has the meaning given by subregulation 2.57 (3).

associated entity has the meaning given by section 50AAA of the Corporations Act 2001.

associated with has the meaning given by subregulation 2.57 (2).

regional Australia means a part of Australia specified by the Minister in an instrument in writing for this definition.

1114B. Employer Nomination (Permanent) (Class EN)

(3) Other:

(a) An application must be made as an Internet application.

Note An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

(b) An applicant may be in or outside of Australia, but not in immigration clearance.

(c) An applicant in Australia must hold:

(i) a substantive visa; or

(ii) a Subclass 010 (Bridging A) visa; or

(iii) a Subclass 020 (Bridging B) visa; or

(iv) a Subclass 030 (Bridging C) visa.

(d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:

(i) under regulation 5.19; or

(ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

(e) An application by a person claiming to be a member of the family unit of a person who is an applicant for an Employer Nomination (Permanent) (Class EN) visa may be made at the same time as, and combined with, the application by that person.

(4) Subclasses:

Subclass 186 (Employer Nomination Scheme)

Subclass 186 Employer Nomination Scheme

186.1 Interpretation

186.111 In this Part:

application for approval means an application under regulation 5.19 for approval of the nomination of a position.

occupation means the occupation that would be carried out by a person who is employed in a position.

Note 1 For labour agreement: see regulation 1.03.

Note 2 Regulation 1.03 provides that competent English has the meaning set out in regulation 1.15C.

Note 3 Regulation 1.03 provides that vocational English has the meaning set out in regulation 1.15B.

186.2 Primary criteria

Note The primary criteria for the grant of a Subclass 186 visa include criteria set out in streams.

If an applicant applies for a Subclass 186 visa in the Temporary Residence Transition stream, the criteria in Subdivisions 186.21 and 186.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 186 visa in the Direct Entry stream, the criteria in Subdivisions 186.21 and 186.23 are the primary criteria.

If an applicant applies for a Subclass 186 visa in the Agreement stream, the criteria in Subdivisions 186.21 and 186.24 are the primary criteria.

The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

186.21 Common criteria

Note These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 186 visa.

186.211 If it is mandatory, in the State or Territory in which the position to which the application relates is located, that a person:

(a) hold a licence of a particular kind; or

(b) hold registration of a particular kind; or

(c) be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation to which a position relates, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

186.212 The position to which the application relates will provide to the applicant the employment referred to in the application for approval.

186.213 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.

(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

(3) Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.

(4) Each member of the family unit of the applicant who:

(a) is an applicant for a Subclass 186 visa; and

(b) had turned 18 at the time of application;

satisfies public interest criterion 4019.

(5) Each member of the family unit of the applicant who:

(a) is an applicant for a Subclass 186 visa; and

(b) has not turned 18;

satisfies public interest criteria 4015 and 4016.

(6) Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.

186.214 (1) The applicant satisfies special return criteria 5001, 5002 and 5010.

(2) Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies special return criteria 5001, 5002 and 5010.

186.215 Either:

(a) the applicant holds a valid passport that:

(i) was issued to the applicant by an official source; and

(ii) is in the form issued by the official source; or

(b) it would be unreasonable to require the applicant to hold a passport.

186.22 Criteria for Temporary Residence Transition stream

Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Temporary Residence Transition stream.

186.221 At the time of application, the applicant:

(a) had not turned 50; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.222 At the time of application, the applicant:

(a) had vocational English; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.223 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3); and

(b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

(c) in relation to which the declaration mentioned in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

(2) The Minister has approved the nomination.

(3) The nomination has not subsequently been withdrawn.

(4) The position is still available to the applicant.

(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.

186.224 (1) The applicant satisfies public interest criterion 4007.

(2) Each member of the family unit of the applicant who is an applicant for a Subclass

186 visa satisfies public interest criterion 4007.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.23 Criteria for Direct Entry stream

Note These criteria are only for applicants seeking to satisfy the primary criteria for a

Subclass 186 visa in the Direct Entry stream.

186.231 At the time of application, the applicant:

(a) had not turned 50; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.232 At the time of application, the applicant:

(a) had competent English; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.233 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of:

(i) subparagraph 5.19 (4) (h) (i); or

(ii) subregulation 5.19 (2) as in force before 1 July 2012; and

(b) in relation to which the declaration mentioned in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who was the nominator in the application for approval.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(5) The position is still available to the applicant.

(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.

186.234
186.2 Primary criteria

Note The primary criteria for the grant of a Subclass 186 visa include criteria set out in streams.

If an applicant applies for a Subclass 186 visa in the Temporary Residence Transition stream, the criteria in Subdivisions 186.21 and 186.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 186 visa in the Direct Entry stream, the criteria in Subdivisions 186.21 and 186.23 are the primary criteria.

If an applicant applies for a Subclass 186 visa in the Agreement stream, the criteria in Subdivisions 186.21 and 186.24 are the primary criteria.

All criteria must be satisfied at the time a decision is made on the application.

186.21 Common criteria

Note These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 186 visa.

186.211

If it is mandatory, in the State or Territory in which the position to which the application relates is located, that a person:

(a) hold a licence of a particular kind; or

(b) hold registration of a particular kind; or

(c) be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation to which a position relates, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

186.212

The position to which the application relates will provide to the applicant the employment referred to in the application for approval.

186.213

(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.

(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

186.214

(1) The applicant satisfies special return criteria 5001, 5002 and 5010.

186.221

At the time of application, the applicant:

(a) had not turned 50; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.222

At the time of application, the applicant:

(a) had vocational English; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.223

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

[(b) amended by SLI 2013, 32 with effect on and from 23/03/2013 – LEGEND note]

(b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The Minister has approved the nomination.

(3) The nomination has not subsequently been withdrawn.

(4) The position is still available to the applicant.

(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.

186.224

(1) The applicant satisfies public interest criterion 4007.

(2) Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4007.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.23 Criteria for Direct Entry stream

Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Direct Entry stream.

186.231

At the time of application, the applicant:

(a) had not turned 50; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.232

At the time of application, the applicant:

(a) had competent English; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.233

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of:

(i) subparagraph 5.19(4)(h)(i); or

(ii) subregulation 5.19(2) as in force before 1 July 2012; and

(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who was the nominator in the application for approval.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(5) The position is still available to the applicant.

(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.

186.234

(1) At the time of application, subclause (2) or (3) applies.

[(2) amended by SLI 2013, 233 with effect on and from 28/10/2013 – LEGEND note]

(2) All of the following apply:

(a) an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant’s skills as suitable for the occupation;

[(aa) inserted by SLI 2013, 233 with effect on and from 28/10/2013 – LEGEND note]

(aa) the assessment is not for a Subclass 485 (Temporary Graduate) visa;

[(b) amended by SLI 2013, 146 with effect on and from 01/07/2013 – LEGEND note]

(b) the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

(3) The applicant is a person in a class of persons specified by the Minister in an instrument in writing for this subclause. [Usual exemptions + paid top tax rate pay or a NZ person]

186.235 (1) The applicant satisfies public interest criterion 4005.

(2) Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4005.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4005 unless the Minister is satisfied that it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.24 Criteria for Agreement stream

Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Agreement stream.

186.241 Either:

(a) the applicant had not turned 50 at the time of application; or

(b) the Minister has agreed, in a labour agreement:

(i) that is in effect; and

(ii) to which the employer is a party; and

(iii) under which the position to which the application relates is nominated; and

that persons who have turned 50 may be employed.

186.242 (1) The position to which the application relates is the position:

(a) nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party; and

(b) identified in the application for the grant of the visa.

(2) The requirements of the labour agreement have been met in relation to the application.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(5) The position is still available to the applicant.

(6) The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(a) are provided; or

(b) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.

186.243 The applicant has qualifications, experience and other attributes that are suitable for the position.

186.244 (1) The applicant satisfies public interest criterion 4005.

(2) Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4005.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.3 Secondary criteria

Note These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

186.31 Criteria

186.311 The applicant:

(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

(b) made a combined application with the primary applicant.

186.312 Any nomination approved in respect of the primary applicant, and mentioned in paragraph 1114B (3) (d) of Schedule 1, includes the applicant.

186.313 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.

(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

(4) If the primary applicant holds a Subclass 186 visa in the Temporary Residence Transition stream, the applicant satisfies public interest criterion 4007.

(5) If subclause (4) does not apply, the applicant satisfies public interest criterion 4005.

186.314 The applicant satisfies special return criteria 5001, 5002 and 5010.

186.315 Either:

(a) the applicant holds a valid passport that:

(i) was issued to the member by an official source; and

(ii) is in the form issued by the official source; or

(b) it would be unreasonable to require the applicant to hold a passport.

186.4 Circumstances applicable to grant

186.411 The applicant:

(a) may be in or outside Australia when the visa is granted; and

(b) must not be in immigration clearance.

Note The second instalment of visa application charge must be paid before the visa can be granted.

186.5 When visa is in effect

186.511 Permanent visa permitting the holder to travel to, enter and remain in Australia for 5 years from the date of grant.

186.6 Conditions

186.611 If the applicant is outside Australia when the visa is granted:

(a) first entry must be made before the date specified by the Minister; and

(b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8515 may be imposed.

The English Exemption[5]

SPECIFY the following classes of persons for the purposes of paragraphs 186.222(b), 186.232(b), 187.222(b) and 187.232(b) of the Regulations:

Class 1

Ministers of Religion (ANZSCO 272211) who have applied for a visa under the Regulations to occupy a position as nominated by a religious institution.

Class 2

Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.

SPECIFY the following class of persons for the purposes of paragraphs 186.222(b) and 187.222(b):

Class 3

Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

The Australian Tax Office top individual income tax rate is currently $180,001 (sic). Note that the concession for 5 years of study in English only applies to the Temporary Residence Transition stream (for both ENS & RSMS).

The exemption in class 3, therefore, in practice would exempt most persons coming from English speaking countries with the possible exemption of some older trades persons who may have done only 3 or 4 years of high school and then started an apprenticeship.

Barbara DavidsonOctober 19, 2017Nomination

Nomination

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