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  • Subject Name : Migration Law

Migration Law: Ann Wu

Brief Facts

Ann Wu is a resident of the People's Republic of China and was born and brought up there. She had been residing in Australia on a temporary visa subclass 457. Her husband is also a dependant on her visa which expires on 20 July 2021.

Question 1

Its 18 July 2020 and Ann Wu wants to transfer her visa from subclass 457 to subclass 189. Being a junior migration agent at Atlas Migration Services, I have to figure out some way to help Ann in attaining that visa and all the essential conditions, implications that compliments with that.

Letter-

Dear Mrs Ann Wu,

Firstly I would like to extend my gratitude for choosing Atlas Migration Services as your migration agent. This letter is regarding your query for transfer of your visa into subclass 189. Your query has a solution in the Migrations Regulation act, 1994.

The Migration Regulation act, 1994 is a rulebook for people who are or want to reside in Australia. Subclass 189 gives a permanent visa to the applicant. It is a permanent general skilled migration visa which does not require any sponsorship by its employer, state or territory government or any relative of the applicant living in Australia.

The general requirements to apply in this subclass is-

Write an Expression of Interest (EOI) and wait for the invitation from the visa office. Once an invitation is received, within 60 days, the applicant must apply for a visa. If not done, the time lapses.1 An EOI is a statement written by the applicant stating that he is interested in applying for a skilled visa in Australia. For that purpose, he is demanding permission of immigration from the authorities. After submitting this EOI, the applicant shall be compared with other applicants and then might get invited if found appropriate.

The second requirement is of meeting the passing marks in the skills migration points test. For subclass 189, it is 65. This sum is calculated through various factors like the age of the applicant, the English language skills, the number of years the applicant was employed outside Australia, etc.2

The age of the applicant should be between 18 to 44 years. An applicant, who turned 45 after receiving the invitation from the visa office, can also apply. But an applicant who turned 45 after he submitted his EOI and before the reply, cannot apply.3

At the time of application, the applicant must have competent command over the English language. For this one must prove that he is a citizen of the UK, Canada, USA, New Zealand or Ireland. If not, then through a series of tests it could be concluded. Tests like IELTS, TOEFL iBt, PTE Academic etc are taken into consideration. With this, the applicant must keep in mind that the tests are taken within 3 years before the date of the invitation. For this class, if one's partner is planning of having a visa, so he/she must also prove the same things.4

The applicant’s occupation must fall under the list of eligible skilled occupations which comes for subclass 189. It includes software engineers, analyst programmer, aeronautical engineers, system analyst, etc.

The applicant must meet the health requirements and take the permission of the Department of Health Affairs (DOHA). The factors that are taken into account are tuberculosis, HIV/AIDS, pregnancy, hepatitis, etc. The application for a medical examination that comes to DOHA and the result declared by it shall be valid for 1 year. If the visa application gets delayed beyond that period, then the applicant would have to undergo the same procedure.

The applicant should pass the character test. This test is based on the gut feeling of the minister. It is laid down under section 508 of Migration Act, 1958. It says that if the minister feels that a person has failed the character test, so his visa can be cancelled. If the applicant has a criminal record, if a person committed some offence while he was at immigration detention, etc so his application can be cancelled.

If there is an outstanding debt that the applicant or his family owe to the Australian government, so that should be paid full-fledged, else cancellation of the application.

An applicant above 18 years of age should read the Life In Australia booklet and sign the Australian Value Statement just to show that one would respect and uphold the sovereignty and integrity of the country.

The list of the requirements for the subclass 189 gives the details for what all essentials the applicant has to fulfil for the visa. You requested on 18th May. As per the information given in your CV, you are born on 18 July 1975 which means that in July 2020 you shall complete her 45 years. One of the requirements of the visa is the applicant should range between 18 to 44 years. This leaves you with exactly 2 months to submit her application. After that, you won’t be eligible. Rest of the essentials, you adequately fit in. Your IELTS score is 8 while the minimum is 6, you fall under the list of skilled occupations, you have no such past criminal records or health issues that could reject her application.

Therefore, as your agent, I would suggest you complete her application within 2 months and keep all the documents ready when the process starts.

Question 2

On July 2, 2020, Ann wrote back to Atlas Migration Services saying that she did not receive the invitation from the visa office. Now her employer is ready to provide her with the permanent resident status by sponsoring her visa. Her current salary package is $1,20,000 and this shall be no change. Therefore she needs a detailed analysis of what shall be the legal requirements and implications for any permanent employer sponsorship visa.

Letter-

Dear Mrs Ann Wu,

Regulation 5.19 of the Migration Regulations, 1994 gives the option to the employer of permanent nominations. In that, if the nomination has to be done under subclass 186 then there are three options in which it could be done. First a subclass 186 (Employer nomination scheme) visa in the Direct Entry Scheme, second subclass 187 (regional sponsored migration scheme) visa in the Direct Entry Scheme and the third for subclass 186 (Employer nomination scheme) visa in the Labour Agreement Scheme.

In Australia, under the Permanent Employer Sponsored Visa, there is nothing as elaborative and comprehensive as the details of subclass 186 (ENS) and subclass 187 (RSMS) visa in the domain of Australia. This allows laborers from abroad to live and work in the region of Australia. Under the Employment Nomination Visa of subclass 186, the Australian businesses have the ability to support any prodigy laborer to live and work in the region of Australia forever. As indicated by the subclass 186 of the business assignment conspire, the family of the worker, will get a perpetual residency just as the person employed. The individual applying for visa under subclass 186 must meet the aptitudes as per the occupation.

A positive ability evaluation must be submitted to the workplace where it is significant that the aptitudes must fall under the four-digit unit gathering. There are certain expiry dates for the equivalent. The validity stands for three years and if that time period is not met, then it elapses. People who are dreaming of having a perpetual resident in a country have to comply with the adequate standard of completing atleast three years of their occupation with their employer or the person nominating him. As per the Migration Act, it is the obligation of the candidate that he be employed for a base time of three years with the employer who promises to provide him with nomination. The most basic thing for this is that the employer must provide the employee to be nominated with the adequate salary package and abide by the adequate labour condtions meaning, he or she must have worked 35 hours out of every week.

If subclass 186 did not help the person, then a last resort that an employer could take recourse of is subclass 187. This subclass too lets the worker and his family to live in Australia and work forever. To avail the benefit of this category, the candidate should have an occupation under the occupation list gave. It is imperative that the candidate ages forty five years. The employer should be sure that it is very necessary for the candidate to be employed in their organization. If the business is working unlawfully, then the commercial enterprise can provide visa to an candidate under this subclass. The enterprise has to abide by all the required guidelines given in the Act. The employer has to report of every minor to minor and big to big changes to the officials. This means that what is the name of the company, the trademark of the company, if there is a change in the director of the company, if the line of business did change, the total number of employees, the intellectual properties of the company, everything has to be told to the officials. With this it could be established that the work of the company is legally valid and as per the corporations guidelines and that there could be no harm done if given the permission.

The amount of compensation given to the employees should be according to the average wage rates and as per the labour law guidelines. Every employee who belongs to the skilled workclass is to be given an average pay of $1,48,700 and made to work 35 hours per week. Any company who does not abide by such guidelines are accustomed to be penalized as per the labor laws and their sponsorship could not be recognized in such situations.

Therefore if we apply the given guidelines to the current situation, so we can conclude that you have to make sure that your employer can provide all the legal documents in the above guidelines mentioned to the office. Been born and brought up in China, it having working in Australua for thr past three years, it could be concluded that if her employer did satisfy the given conditions, then she and her husband can be granted the permanent visa. Born on 18 July, 1975 and applying for such visa on If he does not abide by the guidelines, then legally he cannot give you sponsorship of permanent 2nd July, 2020, she is about to complete her minimum age which is required for application that is 45 years. But the legislations provide exceptions o=in such a scenario that if a person is nominated as a senior academic in some university of Australia, or is a researcher, scientist, technical specialist at ANZSCO level and has been nominated by the governmental agency of Australia, then the exception is applicable. ANZSCO stands for Australia and New Zealand Standard Classification of Occupations.

It is a type of classification based on skills of the workers and categorize them into groups. It is categorized into five groups- major group, sub-major group, minor group, unit group and occupation. One of the most detailed one is the occupation group which is denoted by six digits. For example, 142111 Retail Manager. 5 Since you being a software engineer, who is more or less like a technical specialist could fall under this category of exception and be valid to apply for visa under this subclass after 18 July, 2020 when you have completetd your 45 years. Your salary of $1,20,000 is a fixed amount and that is not as per the market rate for the labours as per the guidelines given. This could be problematic as the required market rate has to be $1,48,700 but since your salary falls short of the said amount, he should either give you a raise or you should look for some other employer for sponsorship.

References

Australian Government, Department of Home Affairs, (2020). Immigration and Citizenship. Retrieved from https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/skilled-independent-189/points-tested#Eligibility

Australia Visa Bureau, (2020). Immigration to Australia. Retrieved from https://www.visabureau.com/australia/visas-and-immigration/skilled-migration/skilled-visa-points-test

Acacia Immigration Australia, (2020). Skilled independent subclass 189 visas. Retrieved from https://www.acacia-au.com/skilled-independent-subclass-189.php

Laurent law, (2018). ANZSCO and skill level jobs. Retrieved from https://blog.laurentlaw.co.nz/2018/05/03/anzsco-and-skill-levels-of-jobs/

Migration Regulation act, 1994.

J, Phillips, Klapdor, M. and Simon-Davies, J.(2017). Migration to Australia since Federation: a guide to the statistics. Parliamentary Library

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

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