Australian Visa System and Employer Sponsored Visa for Skilled Workers

This article discusses the Australian visa system and the employer sponsored visa for skilled workers. It covers the different subclasses of visas and their eligibility criteria. The article also includes a case study on Bereha and Murat's visa application. The Labour Market Testing process and the eligibility of Bridging visa holders to apply for other subclasses of visas are also explained.

Graduate Diploma in
Migration Law
LML6004
AUSTRALIAN visa
system 2

Table of Contents
MAIN BODY.......................................................................................................................................2
Question 1........................................................................................................................................2
Question 2........................................................................................................................................4
Question 3........................................................................................................................................5
REFERENCES.....................................................................................................................................6
MAIN BODY
Question 1
Bereha and Murat are married couples living in Australia. The former is on
Bridging Visa(010) and the latter is on the Protection Visa(866). Bereha is
working as a pharmacist and Murat is employed as a cashier in a
supermarket in Richmond. They received a letter from the Department of
Home Affairs which states that there might be a low possibility of the
couple to get a family visa as their application will be given least
preference that is after addressing the other applications for family visa,
their application will be considered for the evaluation. The reason given by
the Ministry is that Murat has entered in Australia on IMA(Illegal
Maritime Arrival). After few days Murat received another notice related to
the cancellation of the protection visa1. Bereha contented that she is
unaware of the fact that her husband has arrived on the IMA. She then
requested the employer to sponsor her for the permanent visa of the
country.
Employer sponsored visa of Australia states that the various business
organizations or companies can nominate the skilled workers who holds a
particular qualification and skills to get a job in the country. There are
different subclasses of visas-
 The Employer Nomination Scheme visa(Subclass 186)
 Temporary Skill Shortage visa( Subclass 482)
1 Emergency Migration Act Of 1953 ([U.S. G.P.O.], 2019)

 Skilled Employer Sponsored visa (Subclass 494)
These are the sanctions on the basis of which an individual can live in
Australia while working in any organization. People from other countries
who are interested in acquiring a permanent visa of Australia can apply
under this category but the basic requirement for the same is that the
person must be a skilled worker and coming for the employment in
Australia, then only an employer can sponsor the person for Subclass 186,
482 and 494 visas. The 186 subclass visas provides permanent residency to
the person who is applying for the same. The 482 and 494 subclass visas
are the pathways for acquiring permanent residency in the country. The
former includes 2-4 years of visa generation and the worker is required to
work with the same employer and occupation for above specified time
limit and the latter covers those skilled employees who desires to work in
the regional parts of Australia2. It is mandatory for the individual to pass a
skill test under 186 subclass visa in order to become eligible for the visa.
Then after completing the aforesaid test, the individual can be nominated
by the employer. The eligibility requirements for the foreign nationals who
want to apply for a sponsored visa are-
 The nomination must be done by a registered employer of Australia.
 The individual must have clear the skill test or should holds certain
skills, knowledge of English language and required qualification.
 The person must be less than 50 years of age.
The Migration Act 1958 is a primary legislation which regulates the
migration or the movement of the foreign nationals in Australia. It also
provides a structure regarding the visa system of Australia. Section 137Q
talks about the reasons on which the sponsored employment visas can be
cancelled by the ministers of DHA3. Like, if the person has failed to start
the employment process according within a specific period of time. The
ministers did not get satisfied that the person who is required to initiate the
employment has commenced the said employment in the given time
2 Fragomen, Austin T., "Immigration And Nationality Act Of 1981" (2018)
16(1) International Migration Review
3 Stubbs, Matthew T 2020, "Arbitrary Detention In Australia: Detention Of Unlawful Non-
Citizens Under The Migration Act 1958 (Cth)" (2020) 25 Australian Year Book of
International Law

period. If the employment came to an end (within two years). Bereha can
apply for permanent visa on the basis of employer nomination from either
the place where she was employed that is Richmond or Gordon where
there is another branch of the pharmacy. Because the same employer runs
the pharmacy in Gordon as well as in Richmond. Bereha satisfies all the
mandates of the above mentioned schemes. And she can give a skill test if
necessary otherwise she is already posses skills and qualifications and was
working as a pharmacist in the pharmacy.
Question 2
The Labour Market Testing is required if the worker is being sponsored by the
employer under subclass 482 and 494 visa. Labour market testing is a recruiting
process which is being done on the part of the employers or the companies so as
to nominate any worker for the purpose of employment. The LMT is processed
in the cases when the local labour or the residential workforce of the country is
not able to fulfil the job criteria which means they do not holds the skills or the
qualification required for the particular job. Then they move towards recruiting
the foreign citizens by going through this technique. The employers of the
various business organizations must undertake this recruitment campaign before
constructing the nominations under 482 and 494 subclass visa. In the above
case scenario, If Bereha is being nominated by the employer of the pharmacy
under the category of 482 or 494 subclass visa then the employer can initiate
the procedure of labour market testing requirements4. They are-
 The employers are required to post at least two employment
advertisements in addition one of the advertisement on Jobactive.
 The advertisements are required to be posted on the national recruiting
and hiring sites that is Seek, Jora and Indeed.
 The advertisements must be posted on the website for minimum 28 days.
 The employment advertisement must cover, the name of the organization
or the employer, the job title, work and salary description, the
qualifications required for the job.
Question 3
In the above case study, Bereha is eligible to apply under any other class of visa
irrespective of the fact that the Department of Home Affairs refused to provide
4 Petrie, Ben, Natasha Bosnjak and Grant T Riethmuller, Migration Law (2020)

her with the partner visa. As Bereha was already living in Australia on the
Bridging visa which was granted by the DHA when she earlier applied for the
partner visa. According to Section 76 of the Migration Act 1958, if any
individual who is not a resident of Australia holds Bridging visa, the possession
of such visa will not affect or prevent the individual to apply for a visa under
any other subclass. It will also not prohibit the act of granting any such visa to
the individual.
REFERENCES
Emergency Migration Act Of 1953 ([U.S. G.P.O.], 2019)
Fragomen, Austin T., "Immigration And Nationality Act Of 1981" (2018) 16(1) International
Migration Review
Petrie, Ben, Natasha Bosnjak and Grant T Riethmuller, Migration Law (2020)
Stubbs, Matthew T 2020, "Arbitrary Detention In Australia: Detention Of Unlawful Non-Citizens
Under The Migration Act 1958 (Cth)" (2020) 25 Australian Year Book of International
Law