This case study explores the immigration laws and regulations in Australia and provides remedies for a petroleum engineer to travel to Australia for a project.
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1 Immigration Law; Case Study Student’s Name Institution Course Tutor Date
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2 To:Jacob Hassan & Mr. Meyer From: Subject:Immigration Law; Case Study Introduction No state is immune to the possibility of falling short of skilled human resource. This is a huge problem that impedes the economic progress of a country and has often been the motivating factor in states entering into trade treaties and becoming members of trade blocks. These treaties and memberships aim to make it easier for foreigners with highly skilled abilities to move freely into any of the member's states to carry out business. Through ratification of these treaties, the Australian government has been able to come up with various policies and laws that have enabled it to grow its economy through the expertise of skilled foreign workers.1 Mr. Hassan is a famous petroleum engineer in Britain - a country where he sought asylum in 2007. The work of his hands is known to many nationals as the creator of the first electronic card to be used at a royal wedding by Prince Harry. Mr. Hassan is a creative, talented, and enthusiastic engineer he has come up with the idea of separating hydrogen from the chemical compound water to create a hydrogen-based fuel. This idea will revolutionize the energy world; however, he is afraid of realizing it in Britain as the Brexit exit campaign has resulted in the uncertainty of the British economy. Mr. Hassan gets lucky when he runs into Mr. David, a prominent businessman based in Australia. He shares his concerns and genius ideas with him. Mr. Meyer marveled promises to help Mr. Hassan get to Australia to work on his project. This letter will provide the appropriate remedies based on law, rules, regulations, and policies that may be used by both Mr. Meyer and Mr. Hassan to enable him to travel to Australia to achieve his goals through the creation of the first-ever hydrogenated fuel. Legal Rules, Regulations, policies;Points of Discussion 1Lesleyanne Hawthorne, "A Comparison Of Skilled Migration Policy: Australia, Canada, And New Zealand" [2014]SSRN Electronic Journal.
3 For one to gain entry into any state whatsoever, they have to be in a position to apply for a visa. A visa is a condition document that allows one to visit a particular country for various reasons that were issued to the run-up to the granting of the relevant permit. The Australian government, through theImmigration Act 1958, has been able to create the various classes of visas that Mr. Hassan may apply for if they wish to visit Australia for multiple purposes.2Through the same Act, the government has been able to create temporary subclass visas that facilitate the travel of an individual to Australia for a stipulated amount of time. These categories of visas are referred to as temporary visas, which are often issued when the foreigner is visiting Australia for a particular activity or until the conclusion of a certain event. This section applies to one applying for a temporary visa to visit Australia for business ventures.3 Although there are various kinds of visas for Mr. Hassan to apply for, the government has reserved powers under section 41 of theImmigration Act1958, to regulate, determine, and limit the extent of the activity one is to undertake while staying in Australia. This has led to the creation of different visa subclasses that are granted only with specific regulations that apply to the applicant. What Mr. Hassan must ensure is that he asks for the relevant visa class that will allow him to do business in Australia. Examples of such visa subclasses include; i.theMedium Temporary Skilled Subclass 482 Visa ii.theGlobal Temporary Visa Australia;and iii.theDistinguished Talent Visa 128/158. These visa classes will not only enable Mr. Hassan to come to Australia for the realization of his professional goals but also Innovation Technology and Engineering in sponsoring Mr. Hassan to Australia as he possesses skills that are alien to many if not all Australian nationals. However, there are set standard that Mr. Hassan must satisfy for him to be granted any of the visa classes. Medium Temporary Skilled Subclass 482 Visa This class of visa will grant Mr. Hassan the freedom of working in Australia as he so desires. However, he has to satisfy the conditions required for one to qualify for this visa. The validity of this is a maximum of four years. Throughout the validity period, Mr. Hassan is at liberty to travel 2Section 30 of the Immigration Act 1958 3ibid see Subsection 2 of Section 30
4 to and from Australia as he wishes; also, after three years of staying in Australia, he may enhance it to permanency.4 This requirements also determine whether or not Innovation Technology and Engineering (ITE) may sponsor Mr. Hassan to work in Australia. It is vital that Mr. Hassan meets the requirements that were introduced by theMigration Amendment (New Skilled Regional Visas) 2019.The irreducible minimums that must be met by Mr. Hassan comprise of the following; i.It is crucial that the job description of the skilled foreign applicant falls under the Medium Long-Term Strategic Skills List (MLTSSL). Mr. Hassan having attended one of the best engineering schools in Iraq he possesses knowledge and skills that are required for one to be a great and competent engineer. Engineering is one of the jobs listed under the MLTSSL. Going by regulation 1.03 ofMigration Regulation1994, Mr. Hassan fully satisfies the first condition needed for him to apply for this visa. ii.The applicant must be able to express himself freely and eloquently by the use of the English language. Communication is key in any state that is why the Australian government emphasizes that any foreigner who desires to work in Australia must sit for the IELTS 5.0 test. If Mr. Hassan sits for this test, he is required to score a minimum of 5.0 or its equivalent. However, there are exemptions to this requirement. For instance, if Mr. Hassan had attended an institution of learning for five years, they would be exempted from the IELTS only when the relevant major was taught in English. Although Mr. Hassan of Iraqi descent, he has stayed in Britain for close to ten years he will be exempted from IELTS since English is common and official language of Britain. Also, if Mr. Hassan can provide a passport from the United Kingdom, he will be exempted from the English test too. This is because the regulations exempt the bearers of passports from countries like Canada and the United Kingdom.5 iii.Moreover, every employer always looks forward to employing a skilled worker who at least gained experience in their related profession. For example, Mr. Jacob must possess a minimum of two years of experience as an engineer. The said years of experience must 4Repealed Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 5See explanatory on Migration Act 1958 and Migration Agents Regulation 1998
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5 fall within five years before the application of this visa. Mr. Hassan has been an active engineer working with Jaguar since 2015 up to until the time he met Mr. Meyer. Mr. Hassan satisfies the two-year minimum working experience needed for one to qualify for the TSSV. Besides, Mr. Hassan is still actively working as an engineer with Jaguar; thus, he not only has a two-year experience but also the experience falls within the five years time frame. iv.TheMigration Amendment (Reform of Employer Sanctions) Act2013 dictates that should Jacob secure a chance of working with an Australian employer (ITE) they should stick to the job description that led to the application and granting of the Visa failure to which it amounts to a breach of the rule.6 Global Temporary Visa Australia7 This is a creation by the government to enable brilliant minds to come to Australia and showcase their amazing ideas related to Science Technology Engineering and Mathematics (STEM). It was created in 2018, and the first pilot program carried out in July of the same year. This visa serves the same objective as that of the TSSV for both are aimed at addressing the skilled labour shortage in Australia. Mr. Hassan's idea of separating hydrogen from the chemical compound water would stand a better chance of being selected by the sponsors who take part in the Global Talent Scheme. This idea is environmental friend, and cost production friendly as water is always an available resource in mass. Therefore, Mr. Hassan may enroll in this scheme. If ITE is interested in recruiting Jacob as one of its employees, then they would have to enroll as accredited sponsors (this are business based in Australia and are permitted to sponsor skilled foreign workers into Australia to help grow the economy). However, to qualify for the GTS program, one must meet the requirements that are set in the TSSV. Distinguished Talent Visa 128/158 6Migration Amendment (Reform of Employer Sanctions) Act2013 7See the Global Talent Scheme (2018)
6 The manner in which Hassan uses his knowledge and skills is an epitome of pure talent combined with knowledge and skills. His achievements include the creation of an electric car that was used during the royal wedding of Prince Harry. Currently, he would like to revolutionize the world of energy by creating the first-ever hydrogen-based fuel for cars that ensures environmental preservation since it burns without producing soot. This is an example of unique talent as established in the case ofWeatherhill, Ross Antony.8 Sponsorship through ITE Alternatively, this could serve to facilitate bringing Jacob to Australia. Accredited sponsors that are businesses that have been approved to employ skilled foreign workers are at liberty to recruit the fittest candidate for any available position that any Australian national nor resident may not be able to fill. Job recruitment is always a demanding task for an employer. David Meyer having show interest in working with Jacob Hassan because of his genius thoughts, he has only one way of ensuring that Hassan may work with him in Australia; that is through sponsoring Hassan through ITE. The sponsorship must be done in accordance with the guidelines that are set out in TSSV 482 and other relevant rules such as the World Trade Organization General Agreement on Trade in Service 1994 ( WTO GTA).9 It is important for Meyer to ensure ITE that becomes an accredited sponsor. Once ITE becomes an accredited sponsor, they will be in a position to sponsor Hassan. To become an accredited sponsor, the submission must be made to the Department of Home Affairs seeking their approval. If the application becomes successful, a nomination should follow matching the description of Hassan's qualifications and the kind of activity he would like to pursue while in Australia through his knowledge. This nomination must be in accordance with the MTLTSSL. Labour Market Testing Innovation Technology and Engineering should be in a position to prove that their search for a candidate who matches the job description required has not been found within Australia; hence the reason why they are employing Jacob Hassan. This may be done through LMT. An 8[2004] MRTA 7153 9World Trade Organization General Agreement on Trade in Services 1994
7 advertisement must be published on the government website and other top job websites for 28 days after which a nomination will be carried out within the next four months10. LMT is mandatory unless it is exempted by a treaty to which the Australian government is a party like the International Trade Obligation.11 The Nomination Process The position that ITE will nominate Jacob for must be genuine and fulltime. ITE must also ascertain that Hassan satisfies the set-out conditions set out when one is to work in accordance with the MLTSS. Once a successful nomination has been done, both Jacob Hassan and ITE are bound by law12to stick to the job description as anything else is deemed to be illegal and amounts to a breach. Nomination Contribution Training13 If ITE becomes an accredited sponsor, it is expected that they pay an annual fee towards Nomination Contribution Training. This is paid according to the turnover of the business. If ITE records a yearly turnover of AUD10M and more their payment will be AUD 1800. If in any case, the turnover falls below AUD10M the fee should be AUD 1200. The Position of the Fair Work Act of 2009 The government has the mandate of protecting both foreign and Australian workers. The government, in its spirit of equality, has directed that workers be paid on the same basis regardless of their nationality. Formerly, foreign workers would face low wages while working extra hours. If ITE succeeds in appointing Hassan, he should be paid fairly and in accordance to this Act; however, if the Act fails to provide a clear way on how much he should be remunerated then ITE 10Code for the Tendering and Performance of Building Work 2016 Section 11F 111840GBA(2) Migration Act 1958, read with s44 of the Legislative Act of 2003 and the Migrations Amendment (Temporary Sponsored Visas) Act 2013 12ibid 13Migration Amendment Act (Skilling Australians Fund) Bill 2017 and Migration (Skilling Australians Funds) Charges Bill 2017)
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8 may rely on recent employment awards since they give an estimated amount that Hassan deserves as pay. The government emphasizes that at least AUD 250,000 should be paid as annual remuneration. Conclusion The following conclusions have been reached; Hassan apply for the TSS 482 visa into work in Canada; Hassan may enroll for the Global Talent Scheme to secure a chance of working in Australia; Hassan due to his abilities may apply for the Distinguished Talent Visa; and David Meyer may be able to sponsor Hassan through ITE
9 Bibliography Hawthorne, Lesleyanne, "A Comparison Of Skilled Migration Policy: Australia, Canada, And New Zealand" [2014]SSRN Electronic Journal Weatherill, Ross Anthony [2004] MRTA 7153 Migration Amendment Act (Skilling Australians Fund) Bill 2017 Migration (Skilling Australians Funds) Charges Bill 2017 Migration Agents Regulation 1998 No. 53 of 1998 Migration Act 1958 No. 62 of 1958 Fair Work Act 2009 No. 28 of 2009 Legislative Instruments Act of 2003 (LIA) Migrations Amendment (Temporary Sponsored Visas) Act 2013 Tendering and Performance of Building Work 2016 (Code) Migration Amendment (Reform of Employer Sanctions) Act2013 The Global Talent Scheme (2018) World Trade Organization General Agreement on Trade in Services 1994 Migration Amendment (Reform of Employer Sanctions) Act 2013 Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 Migration Regulations 1994 (Cth) No. 268 of 1994
10 Migration Amendment (New Skilled Regional Visas) Regulations 2019