Temporary Skill Shortage Visa (Subclass 482) and Migration Agent's Code of Conduct

This article discusses the Temporary Skill Shortage Visa (Subclass 482) and the Migration Agent's Code of Conduct. It explains the requirements and obligations of the visa and the ethical standards for migration agents. The article also provides a case study of an Australian citizen sponsoring a visa for a worker from the United States.

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

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The Temporary Skill Shortage Visa, that is, subclass 482 is also referred to as the TSS.
By virtue of this visa, employers are allowed to address their problem of labour shortage and
bring workers in case there is a shortage of Australian workers1. In cases when an Australian
citizen cannot source skilled Australian workers, they are allowed to bring genuinely talented
workers to enhance their business. This is done with the purpose of addressing the issue of
labour shortage. Overseas workers are brought to Australia to enhance their economy and
business growth. The condition that needs to be satisfied by bringing an overseas worker is that
the Australian worker shall get priority. The sponsor has to be an Australian and the worker can
work under three designated streams- short term stream, medium term stream and labour
agreement stream. The overseas can stay for a period of maximum of 4 years and the stay
depends on the nominated occupation, the stream that has been selected and the circumstances.
To qualify as an overseas worker’s permit visa, the worker has to qualify a few conditions2.
1. The person sponsoring is an approved sponsor and his nomination of the overseas worker
has been approved.
2. The worker has to meet a few requirements and skills and if there is any need to pass any
skill assessment test
3. The person applying for the visa has to hold a substantive visa, if he is in Australia.
4. The applicant has to also follow the health requirements and pass the character
assessment test.
The employer, under whom the overseas worker will be working, has to make an official
nomination application for bringing the employee. If the nomination application is not in place,
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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the sponsor has to make a request for nomination. Hence, there has to be a nomination
application in place to make sure that the visa application is legal. There are three steps for the
application of the Temporary Skill Shortage Visa which need to be followed in order to get a
legal application.
Sponsorship application: the employer has to make a sponsorship application. The person
making the sponsorship application shall have to first become a standard business sponsor
Nomination application: the employer has to make a nomination for a skilled position and the
need for a skilled employee. One an employer becomes an approved sponsor, he shall have the
power to nominate an overseas worker. The nominated worker is nominated for a particular
purpose and in a designated position. While the decision on the application is made, the
nomination visa must be effective3.
Visa application: a visa application needs to be in place by the employee.
The visa permits the person to travel to Australia and stay for the purported time period and also
work for the period which has been approved. Once the employer enters Australia and starts to
work as an employee, he will be treated like a worker and all the rules of Australia shall apply to
him4. Once permitted to work in Australia, the same rules of wages and pay shall apply to them.
A labour agreement is entered between the employer the Australian Government5
The role for which the employer is applying ahs to be listed on the list of Eligible Skilled
Occupations and it has to be in line with the approved list of occupations which have been
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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approved by the Australian Government. It is a prerequisite that the applicant must have the
required qualification to apply for that role6. The overseas worker who will be working in
Australia as a worker needs to have a work experience in that field. Therefore, all the visa
applications are approved on the basis of the sponsorship agreement.
In the present case, Charlie Hickering is an Australian citizen who owns a boutique in
Sydney and has a shortage of skilled workers in his boutique. He requires a fashion designer who
can help him in the business and also continue with the growth of the boutique Totally New.
Charlie wanting more inspiration, travels to New York where he meets a fashion designer and
realizes that Sarah is qualified to work as a fashion designer and therefore proposes the plan that
sarah moves to Sydney and work with him. Sarah, the fashion designer is a citizen of United
States and therefore to work in Totally New as a worker, she needs to get her visa approved. To
work with Sarah, Charlie has to make a visa application under subclass 482 and make a
sponsorship for Sarah. Making the sponsorship is important and a mandatory requirement to
make sure Sarah works in Australia at Charlie’s boutique. To make the sponsorship application,
Charlie ahs to be a registered sponsor and only then can he make a sponsorship for Sarah. Sarah
has to show that she is from United States and she will work in Australia if Charlie is her official
sponsor. Sarah needs to be nominated to work in the fashion department and manage the
boutique. The qualifying criteria to get a visa in Australia is Charlie has to show that he is facing
shortage of workers in his boutique and he is in need of workers for his business. After satisfying
all the requirements, Charlie can apply for a visa for Sarah. In this case, Charlie will be the
sponsor.
6 Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.

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2. To operate as a migration agent under Australian Law, a person has to be registered with the
Migration Agents Registration Authority, also called MARA, the Immigration department
mandates that there shall be a migration agent who shall act in accordance with the standard rules
of conduct7. The Migration Agents Registration Authority is responsible for the code of conduct
of the migration agents. All the migration agents need to be registered with the Migration Agents
Registration Authority. The purpose of the code is to make sure that the behavior of all the
agents are under control and they are not acting in contravention of their laid down duties8. The
Agents need to exude good behavior and their conduct has to be approved and sound. The agents
are required to have good character and are also required to be competent. The work of the
agents is to work with the clients and ensure that their doubts are cleared. The clients are of
primary importance in an immigration department and therefore the clients need to be protected
and they should be given maximum importance. The Code only applies to migration agents who
are already registered. Unless the agents are registered, they will not be bound by the Code9. The
Code lays down the obligations that the agents owe to their clients. The agents are obligated to
act in the best interest of the clients. The Migration Agents are governed under section 314 of the
Migration Act, 195810. The section dealing with the duties and obligations of the migration agent
are laid down under schedule 2, Regulation 8 of the Migration Agents Regulation, 199811. Under
the Migration Act, 1958 there shall be a Migration Agents Registration Authority while is
responsible for the conduct of the Code12. The code shall be applicable to any person who has
7 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.
8 Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
9 Sinatti, Giulia, and Cindy Horst. "Migrants as agents of development: Diaspora engagement discourse
and practice in Europe." Ethnicities 15.1 (2015): 134-152.
10 Migration Act, 1958, sec 314
11 Migration Act, 1958
12 Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.

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registered himself with the Register of Migration Agents under section 287 of the Act. The code
regulates the behavior and conduct of the agents towards the clients and in cases there is a failure
to act in accordance with the provisions of the Act, there shall be no criminal sanction. The
punishment shall be to apply administrative sanction, that is, the agent shall be suspended or he
shall be made cautious of his duties that are owed to the clients. The Agent has to uphold the
interests of the client and also the integrity of the Migration Act and therefore he cannot make
any statement that is deceptive or has the potential of misleading his clients. The Agent has to act
in honesty and also let know the clients the truthfulness of the application and not try to dupe
them into believing a clause that does not even exist. The Agents shall not indulge in any
activity that can give out misleading statements. No criminal liabilities are attracted in cases of
failure to perform as per the regulations but in cases when the Agent outside the scope of his
duty, he shall be reprimanded.13 The Agent has to work diligently and honestly in the best
interest of the client. He has to be in a position to deal fairly with the clients and not quote any
amount that is unreasonable. To be working as a registered agent, he has to perform some
minimum tasks that make him qualified to work as a client. There are certain minimum
requirements that have been laid down in the Act that need to be complied with by the Agent.
The Agent is in charge of giving sound and proper immigration advice and therefore he shall not
act in violation of his duties14. The Agent has to be of a good character and shall have the
integrity and morals to deal with the clients. The Act does not put a question mark on the
competence of the agent if he does not qualify to be of good character but it is an implied duty
that the agent must follow to uphold the interests of the client. Visa application and matters
related to immigration is complex and therefore agents need strict guidelines and the agents
13 Migration Agents Registration Authority Code Of Conduct (2018) Grangeraustralia.com.au
<http://www.grangeraustralia.com.au/code-of-conduct.html>.
14 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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should let the clients know the requirements of a particular visa application. The Migration Act
also deals with standards of professional conduct and they law down the requirements that need
to be followed by the agent in connection with the regulations and the legislation15. In cases
when the Migrating Agent accords in violation of the code of Conduct, he shall be made liable
for the said breach and in those cases the Migrations Agent Registration has the power to impose
sanction on the Migrating Agents. The sanctions imposed by the Migrations Agent registration
can be in the form of cautions or may also lead to the suspension of the registration or in some
grave circumstances the cancellation of the registration16. To be appointed as the migration agent
for Totally New Pty Ltd, the agent ahs to act in fairness and also in the best interest of the client.
The migrating agent is obligated to act to further the interests of the client and let the client know
truthfully and fairly all the requirements for the application. The ethical code of conduct in
Australia sets high standards of professionalism and conduct. Therefore, in the light of the Code
of Conduct, it can be said that the migrating agent has to act professionally and also abide by
strict guidelines of ethics.
3. Under the Migrations Act, the duties of the Migrating Agent has been denoted which states
that he needs to work with his best intentions and also ensure that he informs his client with
utmost honesty. This can be done only if the agent has been under an obligation under the
legislation. Under the obligations of the Code of Conduct, the agent has to convey all the honest
information and he should not deceive the client. In the present case, Charlie is sponsoring the
visa of Sarah who is a national of the United States and is a local resident of New York. Having
a shortage of workers, Charlie wants to appoint an overseas worker who can come to Australia
15 Code Of Conduct | This Is Australia (2018) Thisisaustralia.com <https://www.thisisaustralia.com/code-of-
conduct/>.
16 Code Of Conduct | This Is Australia (2018) Thisisaustralia.com <https://www.thisisaustralia.com/code-of-
conduct/>.

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and work for the betterment of the boutique. Under the circumstances, there is an immediate
need of a worker and Charlie needs the worker at the shortest time frame Charlie has applied for
the visa under subclass 482 that applies to applicants who want to make sure that the visa
applicant can work in Australia under the Australian obligations and be subject to the same rules
and regulations that apply to an Australian citizen. The Agent has to be of a good character and
shall have the integrity and morals to deal with the clients. Acting as the migrating agent, he is
duty bound to work in the best interest of Charlie and give him all the correct information and
not try to dupe him. The time frame of 2 weeks has been given because he shall be departing
New York soon and then after that he would require that the process is done promptly. Though
the client requirement is of utmost value, it is also important to keep in mind that as a migrating
agent it is his duty to give all the correct information to his client. The client wants that the visa
application be processed soon and without any delay as it is urgent for him to make sure that
Sarah joins the business as soon as possible. Getting to know the client’s requirement, the
migrating agent checks the internet and the government website where he finds out that the time
frame that the visa takes to process is longer than what the client is expecting. To be on the safe
side and be ethically correct, the migrating agent is duty bound to let the client know the right
time of the visa and the exact amount of time that will be required by the government to process
the application. The website of Immigration has clearly notified the date and the time within
which the visa application is processed. Therefore, guided by the code of ethics, the migrating
agent is duty bound to inform the client the exact time that will be needed to process the visa
application.
Though the actual time that is required to process a visa application is 5-9 months, under
priority processing, the Department of Home Affairs processes the application and the visa

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application fast tracked. This can be done at the insistence of the applicant and the application,
who is the sponsor, has to prove that he wants to transfer the existing visa to a Temporary Skill
Shortage Visa. In certain cases, if there is an urgent requirement that the visa needs to be
processed under difficult conditions, it is important for the applicant to show the urgency. After
the department of immigration is satisfied with the urgency, the processing time decreases from
5-9 months and reduces to 1to 4 weeks17. It is the duty of the agent to inform his client about all
the requirements that have to be kept in mind and proved to the Government. The Migrating
Agent, being a qualified agent and being aware of the legal requirements, has to convey all the
important information to the client. Bound by the Code of Conduct, he is duty bound to act in the
interest of the client and also ensure that the agent helps the client in processing the application
faster. Being fully aware of the requirements, it is important for the migrating agent to inform the
client that unless the application is processed under the priority processing, it will be very
difficult for the client to get the application on time. In the above mentioned factual situation,
since the advice of the agent is sought on how to process the application the fastest, the agent is
bound by ethics to make sure that all the correct information is given to the client.
17 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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BIBLIOGRAPHY
Temporary Skill Shortage Visa (Subclass 482) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/482->.
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.
Encyclopedia Of Public Health (2018)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
Sinatti, Giulia, and Cindy Horst. "Migrants as agents of development: Diaspora engagement
discourse and practice in Europe." Ethnicities 15.1 (2015): 134-152.
Migration Act, 1958, sec 314
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 Agents Registration Authority Code Of Conduct (2018) Grangeraustralia.com.au
<http://www.grangeraustralia.com.au/code-of-conduct.html>.

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Thisisaustralia.com. (2018). Code of Conduct | This Is Australia. [online] Available at:
https://www.thisisaustralia.com/code-of-conduct/ [Accessed 16 May 2018]