Immigration Law; Case Study

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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Immigration Law; Case Study
Student’s Name
Institution
Course
Tutor
Date

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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
1 Lesleyanne Hawthorne, "A Comparison Of Skilled Migration Policy: Australia, Canada,
And New Zealand" [2014] SSRN Electronic Journal.

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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 the Immigration 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.2 Through 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 the Immigration Act 1958, 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. the Medium Temporary Skilled Subclass 482 Visa
ii. the Global Temporary Visa Australia; and
iii. the Distinguished 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
2 Section 30 of the Immigration Act 1958
3 ibid see Subsection 2 of Section 30

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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 the Migration 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 of Migration Regulation 1994, 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
4 Repealed Migration Legislation Amendment (Temporary Skill Shortage Visa and
Complementary Reforms) Regulations 2018
5 See explanatory on Migration Act 1958 and Migration Agents Regulation 1998

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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. The Migration Amendment (Reform of Employer Sanctions) Act 2013 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
6 Migration Amendment (Reform of Employer Sanctions) Act 2013
7 See the Global Talent Scheme (2018)

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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 of Weatherhill, 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
9 World Trade Organization General Agreement on Trade in Services 1994

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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 law12 to 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
10 Code for the Tendering and Performance of Building Work 2016 Section 11F
11 1840GBA(2) Migration Act 1958, read with s44 of the Legislative Act of 2003 and the
Migrations Amendment (Temporary Sponsored Visas) Act 2013
12 ibid
13 Migration Amendment Act (Skilling Australians Fund) Bill 2017 and Migration
(Skilling Australians Funds) Charges Bill 2017)

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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

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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) Act 2013
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

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Migration Amendment (New Skilled Regional Visas) Regulations 2019