Migration Law: Requirements for Temporary Skill Shortage Visa, Obligations under Code of Conduct

This article discusses the requirements for Temporary Skill Shortage Visa and obligations under Code of Conduct for migration agents in Australia. It provides expert advice on the visa application process, including sponsorship, nomination, and visa application. The article also highlights the importance of complying with the rules and regulations of the Migration Act, 1958, and adhering to the strict guidelines of the Code of Conduct.

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

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Response to Q1
Letter of Advice
To
Charlie Hickering
Australia
Sub: Requirements for Temporary Skill Shortage Visa
Sir,
You are seeking an advice for sponsorship, nomination and visa for Temporary Skill
Shortage Visa. I shall be mentioning about the requirements that are needed for the visa under
Migration Act, 1958.
Subclass 482 is the Temporary Skill Shortage Visa, which is also called the TSS. This visa
allows to solve the problem of labour shortage. Through this visa process, it is easier to bring
labours from a different country if the employer can show that he is facing worker shortage
problems. This visa can be applied when the Australian citizen can show that his work is getting
impeded because there are few employees under him who are skilled enough to carry out the
work. This visa tries to redeem the employers from worker shortage problem. Workers from
other countries are brought to resolve the issue and when an employee is brought, he shall be
treated like any other Australian worker under him and also he should be able to work in

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Australia like any other Australian worker1. The only pre condition that has to be met is that
there shall be no discrimination between the overseas workers and the Australian worker and the
Australian workers shall get more priority. The visa application while solving the problem of
worker shortage also helps in the growth of the economy and also bolsters economic growth. The
visa application process is conducted in three terms where the terms of the overseas workers are
designated. These designated streams are- short term, medium term stream and the labour
agreement stream. The stream which the overseas worker fits into depends on his occupational
skill for which he has been nominated. The maximum term for which the worker can stay and
work in Australia has been fixed at 4 years. The following are the conditions that the workers
need to qualify to get the permit to work in Australia2:
1. The sponsoring person has to be approved to do so and the nomination of the overseas
worker has been approved.
2. If the person applying for the visa is an Australia, he has to hold a substantive visa.
3. There are skill assessments tests which the worker has to pass and he needs to also have a
few requirements that he needs to pass.
4. There are character tests and health tests which are needed to be passed by the applicant
before his visa gets approved.
When the employer who is applying for the visa is starting to make the application, he has to
make an application for a nomination of the worker, so that he is allowed to bring the
employee from other country. Therefore to make the TSS visa, it is important that there ahs
1 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.
2 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.

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been a nomination application. Only when there has been a nomination, the visa application
becomes legal. The three steps before getting the visa approved is:
Sponsorship application: there is need for the person who is sponsoring the application be
a standard and approved business sponsor himself. The employer needs to first make a
sponsorship application3.
Nomination Application: the employer first needs to show that there is shortage of workers
and that there is need for skilled workers at his workplace. The employer then has to
nominate a worker who is skilled. The person who is nominated should have to be done so
for a designated purpose4. The nomination visa must be on place till the decision is made.
Visa application: the employee has to keep the visa application ready
There is a fixed time for which the visa is approved and therefore the visa applicant can only
stay for that period and work in the designation which has been approved. The moment the
worker starts to work in Australia, there shall be a labour agreement between the Australian
Government and the employer and the wages shall be determined according to the rules of
Australia. The Australian Government approves the labour for a designation and therefore,
the employment shall subsist in that department. Only the Eligible Skilled Occupation are
approved by the Government and the employer has to be listed on that. The sponsorship
agreement is a pre requisite for the visa application to get approved and the overseas worker
has to have a working experience in the field he is applying.5
3 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.
4 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.
5 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.

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Applying the above stated rules to the fact scenario, it can seen that Charlie Hickering is
an Australian citizen who is the owner of a boutique in Sydney and he is facing employment
shortage for which he needs a skilled designer to carry the trade forwards. He needs a fashion
designer to help in the working of his boutique Totally New. He travels to New York to look
for some motivation where he comes across a New York based fashion designer Sarah and
after talking to her comes to understand that she is skilled to help in the business of Totally
New. He makes a proposal to Sarah to travel to Sydney and help him with the business as he
is facing labour shortage. Not being a citizen of Australia, to work in Sydney, Sarah needs
her visa approved and therefore Charlie makes a visa application under subclass 482 wherein
he makes a sponsorship for Sarah. Therefore to make the application for Sarah, it is
important that Charlie is a registered sponsor. Charlie has to show that he is facing worker
shortage at his boutique and he needs workers for Totally New.
Response to Q2
A migration agent has to be registered with the Migration Agents Registration Authority,
that is MARA to be qualified to be working as a migration agent under Australian Law. For
every visa application that is placed before the Immigration Office, it is mandatory that the
application goes through a migration agent and the agent has to comply with all the codes of
conduct that are stipulated by the statute6. The MARA helps in regulating the codes of
conduct and there are standard rules laid down under which the agents are to be guided. The
regulatory authority helps in checking if all the rules are being adhered to by the agents or
not. The behavior of the agent has to be in good faith and the behavior needs to be sound and
6 Suit, John M. "Establishing communication between enterprise nodes migrated to a public cloud and private
enterprise infrastructure." U.S. Patent No. 9,426,024. 23 Aug. 2016.

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for the benefit of the employees. The agents should be competent to carry out their duty and
it is important for them to keep the interests of the employees ahead of themselves and the
agent has to work in the best interest of the applicants. In the visa application system, it is
very important to keep the interests of the applicants in mind and also it is essential that their
interests are put at a higher footing than the others. The applicants have a lot of doubts while
applying for the visa and it is the sole responsibility of the agent to clear the doubts. The
Migration Agents are governed by section 314 of the Migration Act and schedule 2 lays
down all the duties and the obligations of the agents that they need to be abided by7. The
Migration Act, 1958 gives authority to the agent to work for the Immigration Agency. The
agent has to register himself with section 287 of the Act and the agent has to register himself
as an authorized agent to conduct the agency8. Though there are laid down codes of conduct
for the agent that he has to follow, he shall not be criminally liable in cases there is any
breach of his duties. The agent shall not be criminally liable if he fails to act in accordance
with the rules and regulations of the statute9. The agent has to uphold the sanctity of the
legislation and also act towards ensuring that the applicants are not mislead or deceived10. In
cases the agent breaches his duties, he shall be made answerable to the administration and he
shall be penalized by the administration. There are certain responsibilities that the agent owes
to his clients and in no way shall the agent be allowed to give out misleading information.
The agent shall not be allowed to make any false statements and he has to act in honesty and
also in the furtherance of the interests of the Act. The intended purpose of the immigration
department is to help the applicants with the visa process and it is the duty of the agent to
7 Migration Act, 1958, sec 314
8 Migration Act, 1958
9 Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
10 Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.

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make sure that he does not give out any information that will dupe the applicant. The aim of
the agency authority is to ease the process of visa application11. The Act has laid down the
guidelines and the duties of the agents and the agent is not allowed to act outside his scope.
In such cases, the administration shall impose strict punishment. The element of fairness is
very important in ensuring that the agent is transparent in his dealings and does not charge
unreasonably and conducts his business with honesty. There are some minimum working
requirements that the agent ahs to comply with and the agent have to perform one task that is
a minimum requirement to be qualified as an agent. The agents need to be of high moral
strength so that they do not indulge in unfair pricing and also they cannot give out any wrong
information keeping in mind their own interests. There are no express duties for the agent to
comply but there are some implied considerations that the agent has to keep in mind while
dealing with a client. There are laid down standard of code of conduct that has to be kept in
mind while the agent in conducting the business and these implied terms state that the agent
has to keep in mind the duties that he needs to execute. The breach of his duties entails that
he shall be made to answer why he lacked the skill to understand the interests of the client
and then sanctions shall be imposed on him12. Therefore, for an agent dealing with the visa
application process of Totally New, it is important that agent keeps in mind the interest of the
applicant and lets him know the time period for which the visa shall be valid, the
requirements that are needed for the applicant and also the skill that is a prerequisite to apply
for the visa. The agent ahs to give out all the information in his professional limit and shall
also adhere to the strict guidelines that the Code mandates. The agent ahs to let the applicant
11 Migration Agents Registration Authority Code Of Conduct (2018) Grangeraustralia.com.au
<http://www.grangeraustralia.com.au/code-of-conduct.html>.
12 Thisisaustralia.com. (2018). Code of Conduct | This Is Australia. [online] Available at:
https://www.thisisaustralia.com/code-of-conduct/ [Accessed 16 May 2018]

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know that the minimum requirements that are present for a visa application, the sponsorship
requirements and well as the nomination that Charlie has to do to make sure Sarah gets the
visa approved to work in Australia. The responsibility of the agent entails that he shall not
mislead the clients because there is a strict need for compliance with the rules.13
Response to Q3
To Charlie Hickering
Australia
Sub: Obligations under Code of Conduct
Sir,
I appreciate that my efforts have paid off and my suggestions have been accepted and
also I am applauded that you have my services further. I am guided by the Code of Conduct
and I shall not breach the code.
The Visa rules in Australia are very strict and there is a necessity for strict compliance
with the stated rules. The agent has to carry forward the implied intentions of the Act so that
the clients do not face any impediment in their visa application. All the information that is
required by the applicant has to be conveyed to the client so that while applying, the claimant
is sure that all the requirements have been complied with and there are no shortcomings in
the application14. The agent shall impart all the information with utmost honesty and shall not
give out any misleading information that will impede the process of visa application. The
13 Sinatti, Giulia, and Cindy Horst. "Migrants as agents of development: Diaspora engagement discourse and
practice in Europe." Ethnicities 15.1 (2015): 134-152.
14 Code Of Conduct | This Is Australia (2018) Thisisaustralia.com <https://www.thisisaustralia.com/code-of-
conduct/>.

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agent cannot gain any unfair advantage out of the business and he shall have to put the
interest of the applicant ahead of his. The client relies on the agent with all the trust and the
agent shall not break the trust the applicant has on him. As the applicant is from a different
country, it is prudent to believe that Sarah is not well versed with the laws of Australia and
she needs assistance in finding out all the required information. Having being living in a
different country, Sarah needs to be made aware of the laws of Australia15. In this case Sarah
is not a national of Australia and therefore the agent ahs to communicate all the information
required to process the visa application. Charlie is sponsoring the visa application for Sarah
because he is in need of a worker who is skilled and qualified to work with him in his
boutique. Charlie is sponsoring the visa and it is imperative for Charlie to know the laws of
Australia but Sarah being a national of New York is not bound to know the laws. She has to
bank upon the agent to make sure her doubts are cleared and also ensure that her visa process
does not get impeded. The agents need to be of high moral strength so that they do not
indulge in unfair pricing and also they cannot give out any wrong information keeping in
mind their own interests. There are no express duties for the agent to comply but there are
some implied considerations that the agent has to keep in mind while dealing with a client.
There are laid down standard of code of conduct that has to be kept in mind while the agent
in conducting the business and these implied terms state that the agent has to keep in mind
the duties that he needs to execute. Charlie is facing shortage of workers and therefore he
needs an immediate worker who can take charge of the boutique. The need for an overseas
worker is immediate and it is needed on the shortest time period. Charlie is not willing to lose
any time in getting the visa approved because for the better functioning of the boutique, it is
15 Code Of Conduct | This Is Australia (2018) Thisisaustralia.com <https://www.thisisaustralia.com/code-of-
conduct/>.

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very important that the applicant gets approved very soon. Under subclass 482, it is important
for the applicant top show that there is a shortage of workers and therefore he needs workers
in a short span of time.16 Charlie has given a time frame of 2 weeks within which the
application ahs to be approved. Therefore, the agent has only been given a time span of 2
weeks and within that time the agent has to get the visa process started and also get the visa
approved. The reason for asking the agent to get done with the process fast is because Charlie
shall be departing New York and he wants that before that time span the application is
processed. The need for getting the visa processed fast is because his boutique has come to a
stand still and there is no way Charlie can make profits out of that boutique without the help
of any specially skilled fashion designer. Sarah is a skilled fashion designer and is in the
process to help the boutique make profits. The agent is duty bound to convey to the applicant
the time within which the visa can be processed. The time frame for the application of the
visa has been mentioned on the government website and therefore, the agent is duty bound to
give out the right information without misleading the facts.
Even though the time specified by the Government to [process the visa is 5-9 months, in
cases of priority, the time can be expedited and the Department of Home Affairs reverses the
right to fast track the process. It is done of the applicant insists that he wants to transfer the
already existing visa to a Temporary Kill Shortage Visa and he is in an urgent need to
process the applicant fast. The urgency of the applicant needs to be shown to the Immigration
department and if the department is satisfied about the veracity of the application, the waiting
period can be reduced from 5-9 months to 1-4 weeks. If the applicant is not being able to
show the urgency then his is left with the option of showing the proof of the business model.
16 Li, Yao‐Tai, and Katherine Whitworth. "When the State Becomes Part of the Exploitation: Migrants’ Agency
within the Institutional Constraints in Australia." International Migration54.6 (2016): 138-150

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Showing the business model to the Government is a faster way of getting the visa fast
tracked. Therefore, the agent being aware of all the legal requirements has to convey the
same to the applicant. Therefore, as the Code of Conduct mandates that the agent ahs to act
ethically and in the best interest of the applicant, he needs to convey all the information so
that Charlie can show that there is an urgency and without the fashion designer Sarah’s help,
the business will be running in loss. Therefore, without mincing information and keeping the
best interests of Sarah and Charlie, the client is duty bound to convey all the information and
also act transparently so that the visa application gets fast tracked.

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BIBLIOGRAPHY
Code Of Conduct | This Is Australia (2018) Thisisaustralia.com
<https://www.thisisaustralia.com/code-of-conduct/>.
Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
Li, Yao‐Tai, and Katherine Whitworth. "When the State Becomes Part of the Exploitation:
Migrants’ Agency within the Institutional Constraints in Australia." International
Migration54.6 (2016): 138-150
Migration Act, 1958
Migration Act, 1958, sec 314
Migration Agents Registration Authority Code Of Conduct (2018) Grangeraustralia.com.au
<http://www.grangeraustralia.com.au/code-of-conduct.html>.
Sinatti, Giulia, and Cindy Horst. "Migrants as agents of development: Diaspora engagement
discourse and practice in Europe." Ethnicities 15.1 (2015): 134-152.
Suit, John M. "Establishing communication between enterprise nodes migrated to a public cloud
and private enterprise infrastructure." U.S. Patent No. 9,426,024. 23 Aug. 2016.
Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.
Thisisaustralia.com. (2018). Code of Conduct | This Is Australia. [online] Available at:
https://www.thisisaustralia.com/code-of-conduct/ [Accessed 16 May 2018]