• Internal Code :
  • Subject Code : LAWS505
  • University : Australian Catholic University
  • Subject Name : Migration Law

Case Study: Wombat Migration

Q.1.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Ohi <ohi@hoppys.com.au>

Subject: TSS Visa Query

Dear Ohio Ahmed,

Thank you for writing to me to inquire about your options to sponsor Alain Da Silva as a motor mechanic for Temporary Skill Shortage (Subclass 482) Visa.

The subsection 140GBA of the migration Act 1958 provides that the purpose of paragraph (3) (AA) and paragraph 6 of the act the nominated position may be authorized by the approved Sponsor1. The advertisement should be published within 4 months before the lodgement in Australia, need to publish in English, and include the below methods as per paragraph 140 GBA (3) (a) and subsection 140GBA (4) of the Act2.

  • It should include the title, description of the position.

  • The skills required to work as a motor mechanic

  • The name of your company which would be Hoppy’s Pty Ltd

  • Provide the salary of the position and if the annual earning is lower than AUD96,400 and you can also provide the range between AUD80,000 to AUD90,000

  • Need at least 2 advertisements on various websites like jobactive.gov.au that helps to publish throughout Australia and for these LMT advertising please use the website where all the trading or mechanic jobs are published. Secondly, please do not publish anything on social media notifications like Twitter, Instagram, or LinkedIn.

  • They need to be published on various print media like newspapers or magazines. Besides, the job vacancies can be announced even on national radio. The advertisements must publish on websites for at least 4 weeks and then the expression of interest for the motor mechanic position must be accepted within 4 weeks. You can also print by yourself or authorize any third party to advertise on your behalf.

Best Wishes,

Mukesh

Q.2.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Ohi <ohi@hoppys.com.au>

Subject: TSS Visa Query

Dear Mr Ohi Ahmed,

Thank you for writing to me to inquire about the processing time for the TSS application to sponsor for Alain Da Silva as a motor mechanic Temporary Skill Shortage (Subclass 482) Visa.

The subsection 140GBA of the migration Act 1958 provides that the purpose of paragraph (3) (AA) and paragraph 6 of the act provide that your business Hoppy Pty Ltd must be an approved sponsor3. TSS Business sponsor is approved if your business is a Lawful operating Business. Once your standard business sponsorship is approved then you will be an accredited sponsor. The accredited sponsor can sponsor someone to work on a Temporary Skill Shortage Visa (Subclass 482). The accreditation will be valid till 5 years.

The processing time for TSS 482 visa again depends on what stream Alain belongs to. Looking at all the three streams, Alain would be falling under Medium and Long-term Strategic Skills List (MLTSSL) for the occupation as he has 10 years of overseas experience as a motor mechanic. The Motor mechanic (general) with ANZCO code 3212114 can be found under MLTSSL stream under the Migration Regulations 1994, sub-regulation 2.72(9)5 that provides the 6 digit code and it has to be mentioned in work agreement and nominated in the Labour Agreement stream. 75% of the TSS application in 29 days and 90% of the application in 59 days.

Yes, there needs approval process right from being a lawful sponsor till the filing of the nomination. For the approval for an approved sponsor, there are few sets of documents that need to be submitted. The requirement includes evidence of operation, Trusts agreement proof document that includes a copy of trust deed and ABN, evidence of business structure if there is any adverse information like compliance issues. I shall provide the lists of information required to submit for this application once you are an approved sponsor.

Regards,

Mukesh

Q.3.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Ohi <ohi@hoppys.com.au>

Subject: TSS Visa Query

Dear Ohi Ahmed,

Thank you for sending an email and updating me on an issue that immigration should be aware of the issues with the previous employee.

The Migrations Regulations 1994, under division 2.196 of the sponsorship Obligations states that under the temporary employer-sponsored skilled visa must meet the sponsorship obligations including the Australian based sponsor must not involve in any other forms of the discriminatory recruitment process7.

Part 5 of the Fair work Act 20098 provides that the visa holders are always protected by unfair dismissal of the Fair work Act. The Fair dismissal code is applicable if there are fewer than 15 employees. You have also terminated the employee without any notice nor requested for any valid reason for his misconduct. To answer your query, I need a couple more information from your side. Did you warn him or give the previous employee a verbal or written notice about his unacceptable behaviour against clients?

Please provide a copy of the unfair dismissal letter or an email sent by the Fair work commission. Once you provide the letter or email, I shall be able to provide more information to help assist you in sponsoring Alain.

Regards,

Mukesh

Q.4.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Alain <ADS@notanemailaddress.com>

Subject: TSS Visa Query

Dear Mr Alain,

Thank you for writing to me to inquire about the eligibility and age criteria to apply for your work visa.

The Migration Legislation amendment, which is Temporary skill shortage and complementary Reform, amend the Migration Regulation 1994 and introduced the new Temporary Skill shortage. Under this visa, the employer, Hoppy’s Tyre and Mechanical need to be an approved Standard Business Sponsor and they can then nominate you for the motor mechanic role in their company. Besides, during the application process, they also need to prove the Immigration department that they cannot find an Australian Citizen or PR holder with the skills and more than 2 years’ work experience for the nomination. In your case, you have 10 years of overseas experience and this can be a good reason to approve9.

Secondly, your nominated occupation must be listed in the skilled occupation list (SOL)10. If it is not listed, then you should negotiate a Labour agreement. In your case, you are under a medium-term stream. So, you even need not worry about your age. As there is no age limit for the TSS visa. Besides, you should also meet the English language proficiency and Health requirement.

Best Wishes,

Mukesh

Q.5.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M To: Alain ADS@notanemailaddress.com

Subject: TSS Visa Query

Dear Mr Alain,

Thank you for writing to me to inquire about the work reference letter.

The Reference letter from your previous employer should cover a 10-year work experience period and need to demonstrate the skill level as per ANZSCO CODE at the Australian Bureau of Statistics. Paragraph 2.72(9) (d) provides the medium-term occupation and the applicable circumstance. The Australian Bureau of Statistics has indicated that minimum experience must be at least 2 years for a motor mechanic with ANZSCO code 321211 (General motor mechanic) under Automotive electricians and mechanics occupation group11.

The duties should be matching the duties mentioned in the Australian Bureau of Statistics and you should also do the skill assessment as you do not hold an Australian qualification in the motor mechanic trade. Besides, registration or licensing may also be required.

The reference letter must be written only in English and should not be written in Portuguese. He can first write in Portuguese and then you should translate them to English.

The letter from your previous employer should be written on the letterhead of the employer and need to include the following details given below

Employers Name, Address, Phone Number and Email Address

The date the reference was written

Your full name

Your Job title

If you were full time or part-time

Your salary

Start and Finish date with at least a month or a year.

Your main duties and responsibilities as per the ANZSCO list of duties and responsibilities

Signed by the Manager/Authorise person

The referee’s full job title

The referee’s contact number and the email address.

Best Wishes,

Mukesh

Q.6.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M To: Alain ADS@notanemailaddress.com

Subject: TSS Visa Query

Dear Mr Alain,

Thank you for writing to me to inquire about the English requirement for the TSS

The Migration Legislation Amendment (Temporary skill shortage Vis and complementary reforms) Regulations 2018 provides that under Part 1 of Schedule 1 the occupation must be listed under any of the three streams. Your occupation is listed under the medium-term stream visa12.

The Migration Regulations 1994 for the specifications of English language Tests, scores, and passports provide under subparagraphs 476.213 and 485.212. Under this regulation, an International English Language Test System (IELTS) Test the test must be completed in single testing and the minimum overall score is 6 and each component (listening, reading, speaking, and writing) is 5 each13.

PTE is also an English language test. The Migration Regulations 1994 for the specifications of English language Tests, scores, and passports provide under subparagraphs 476.213 and 485.212. Under this regulation, an International English Language Test System (IELTS) Test the test must be completed in single testing and the minimum overall score is 50, and the score for each component (listening, reading, speaking, and writing) is 36 each14.

The IELTS and the PTE Test must be taken three years before the application was made.

Best Wishes,

Mukesh

Q.7.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Ohi <ohi@hoppys.com.au>

Subject: TSS Visa Query

Dear Ohi Ahmed,

Thank you for writing to me to inquire about Alain working at both Hoppy and Ohi’s.

The Migration Legislative amendment (Temporary Skill shortage Visa and complementary Reforms) Regulations 2018 of Schedule 1 provides that if the nominee works for the associated entity of the registered trading and must be an approved sponsor15. In Alain’s case, he can work in both the company under the policy where sub-paragraph 5.19(5) (f) (i) where Alain can work for Ohi’s cab servicing as Ohi’s cab servicing is the associated entity for Hoppy’s Pty Ltd. Alain can work in both the Hoppy’s Tyre and Mechanical in the city and Ohi’s cab servicing with the same position16.

The Hoppys Pty Ltd must be a standard business sponsor before you nominate Alain. As you mentioned work will be the same then the position should also be the same when you assign work for him at both your associated entities. Also, the motor mechanic is an occupation listed under a medium-term stream so he can work on the associated entity for a maximum of 4 years17.

Please contact me if you still require any further assistance with this query.

Best Wishes,

Mukesh

Q.8.

From: agent<agent@wombat.com.au>

Sent: Friday, April 2020 10:20 A.M

To: Ohi <ohi@hoppys.com.au>

Subject: TSS Visa Query

Dear Ohi Ahmed,

Thank you for writing to me to inquire about Alain changing to other jobs and the possible costs involved or any commitments from Alain as per the Legislation requirement.

The condition 8607 is an initial condition and Alain should satisfy the primary criteria as per the visa conditions. As per this condition under subclause 8107.175(5) of Schedule 8, Alain cannot cease any employment for over 60 consecutive days, and he must work in a position that is General mechanic in the Hoppys Tyre and Mechanical or Ohi’s cab servicing. He still has an option to find another employer who could sponsor to lodge a TSS nomination transfer and if he would be departed, he can apply for another visa or also under risk for breaching the employment conditions for TSS18.

The sub-regulation 2.73AA(3) of the Migration SAF (Skilling Australians Fund) charges Regulations 2018 states that refund of the nomination fee and nomination of training contribution charge for subclass 482 is applicable if applicant, Alain Leaves your company within 12 months of employment where visa period is more than 12 months. If Alain withdraws nomination before the decision is made under the section 140GB of the Act or if the reason for the nomination is incorrect then it should also satisfy the sub-regulation 3B where Alain’s occupation should be listed under a short term or medium term19. Your company should be an approved sponsor and if Alain withdraws his application if your company withdraws an application for standard business sponsor and lastly if the visa is refused20.

Furthermore, you should be aware of the SAF levy amounts. Could you please confirm if your business annual turnover is above or less than AUD 10 million per annum? Once you provide this I can confirm if you have paid the correct amount and duration for the payments.

Best Wishes,

Mukesh

Bibliography

Journals/Articles

1220.0 – ANZSCO – Australian and New Zealand standard classification of Occupations, 2013, Version 1.3, 23-35

Acts/Legislations

Migration (IMMI 18/039: Mandatory Skills assessment – Subclass 482 Visa) Instrument 2018 – Section 7 of Part 2 (Specification of Occupations for subclass 482 visa)

Migration (LIN 18/036: Period, manner, and evidence of labor market testing) Instrument 2018

Migration (LIN 18/036: Period, manner, and evidence of labour market testing) Instrument 2018

Migration (LIN 18/036: Period, manner, and evidence of labour market testing) Instrument 2018

Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019

Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019

Rules/Regulations

Fair Work commission Rules 2013 (Lodging documents: specific requirements)

Migration (Skilling Australians Fund) charges Regulations 2018

Migration Amendment (Skilling Australians Fund) Regulations 2018

Migration Legislation Amendment (Temporary Skill shortage Visa and complementary Reforms) Regulations 2018 – 175 at the end of Schedule 8

Migration Regulations 1994- Specification of English Language Tests, Scores, and Passports 2015 -IMMI 15/062

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Australian Migration Law Assignment Help

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