Parkville University - Australia Visa System Case Study: Subclass 186

This case study examines the Australian visa system, specifically focusing on the subclass 186 visa, also known as the Employer Nomination Scheme (ENS). The scenario involves Kat, an Italian citizen working as a Research Fellow at Parkville University of Technology, and her husband, Tom, who initially held a subclass 457 visa. The case analyzes Kat's eligibility for the subclass 186 visa, considering age, English language proficiency, employer nomination, and public interest criteria. It also addresses the implications of Tom's health conditions (rheumatoid arthritis and hypertension) on his and Kat’s visa applications, particularly concerning the public interest criterion 4005. The analysis explores the university's eligibility to nominate Kat under both the direct entry and temporary residence transition (TRT) streams, considering factors like employment duration and labor agreements. The case delves into the specific requirements Kat must meet for a 186 visa under the TRT stream, including English language proficiency, employer nomination, and medical assessments, while also highlighting the age limitations. The assignment also includes a bibliography referencing relevant legal resources, including legislation, books, and journal articles.

Australia’s Visa system Introduction
The Australian Visa System deals with the necessities that a person from a foreign
country wishing to enter Australia, must possess to obtain Visa which is a permit to
enter, travel or remain in the country. The visa rules are set out in the Migration
Regulations, the Migration Act 1958 and they are enforced by the Department of Home
Affairs.
Question 1
(Employer Nomination Scheme)Subclass 186 requirements
The employer nomination scheme (ENS) or the subclass 186 visa is given to applicants
already working and living in Australia. They are considered as permanent residency
visas for skilled workers. ENS visas are accessible by both applicants who are already
residing and at work in Australia as temporary residents, and to those residing out of
Australia. To be eligible for this visa, a skilled individual must be nominated by an
Australian employer.1
For Kat to be eligible to obtain the visa she must have the requirements enlisted below;
One of the requirements is, at the time of the application for direct entry stream for a
subclass 186 Visa, the applicant must at the time of application not have attained the
age of 45 years, 2 therefore in this case Kat is eligible to get the 186 Visa for she has not
yet attained the requisite age, despite the fact that it’s only four days remaining to attain
the aforementioned age.
Competence in English language is also another requirement for the 186 Visa Direct
entry stream. In this case scenario, Kat is eligible to obtain the visa because she is
competent in English language for she studied both her undergraduate and master’s
degree of political science in English and also completed and international English
language testing and passed.
1 TSS Migration, Employer Nomination Scheme (2019) Employer Sponsored Visas
<https://www.tssimmigration.com.au/services/detail/employer-nomination-scheme/ >
2 Migration Regulation 1994- Schedule 2 (Cth) S 186.231
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The person employing the applicant must be the one who made the nomination.3 This
requirement is satisfied by Kat because the university agreed and lodged a 186
application in the Direct Entry stream to enable her obtain the Visa and additionally as
per the regulation the nomination has not been withdrawn by the employer.
According to the law, an applicant must satisfy public interest criterion 4005. Kat in this
case qualifies because she satisfies the requirement for she is free from tuberculosis
and available for any medical assessment.
Question 2 (a)
My colleague is mostly alluding to the public interest criterion 4005 that is required for a
family member to the applicant (Kat) who is also an applicant for the subclass 186 visa
to satisfy, therefore the required will not be satisfied by Tom because he has
rheumatoid arthritis and hypertension that he is expected to treat for the rest of his life,
therefore this being the reason for the colleague to suggest temporary residence
transition (TRT).
2(B)
Eligibility of the university to lodge a 186 nomination for Kat in the TRT stream
Under the Australian Immigration laws and regulations, the university will be eligible to
lodge a 186 nomination for Kat in the Temporary residence stream, when Kat is a
holder of a 457 Temporary skill shortage (TSS).
The University will also be eligible to nominate Kat for a 186 visa nomination if she has
been an employee at the university and worked for full time for at least three years.
Therefore, currently the University cannot because she has not worked for full three
year.
According to the Australian labour law, the university will also be eligible to nominate
Kate for a186 Visa if they have a labour agreement with Kat. In this case the university
3 Peñafiel, Justin. "Regulating migration to Australia and back to the Philippines: Applying a ‘diaspora strategies’
framework." (2015) 201-214 Singapore Journal of Tropical Geography 36, 2.
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already has an employment contract with Kat therefore they are eligible to lodge the
nomination.
The university is Eligible to lodge a nomination for Kat she has worked for at least two
years as a 457 or 482 TSS visa Holder for the past three years.4.
Question 2c
Kat requirements for a 186 visa in the TRT stream under Schedule 2 of the
Migration Regulations 1994.
According to the Australian Migration Regulations under Schedule 2, Kat will satisfy the
following requirements for a 186 Visa in the Temporary Residence Transition Stream.
The first requirement is competency in English language as per the law. 5 Kat is
competent in English language, this is because she completed her international English
language testing system and passed. Additionally, the university which is her employer
accepted to nominate her to obtain the 186 Visa, and in the meantime it will be eligible
for she would have acquired the requisite requirements of working for the university for
more than three years. In case the nomination is not withdrawn Kat will also be eligible
to satisfy the requirement.
Another requirement is the public interest criterion for medical assessment pass.6 This
will also be satisfied by Kat as she will be able to undertake the medical checkup as
required under the law. Once the medical assessment is done and she is declared free
from tuberculosis therefore she will satisfy the requirement for a TRT.
However, Kat will not satisfy the requirement for a 186 visa under Temporary Residence
Transition Stream, because as per the law, by the time the university is eligible to make
nomination she will be above the age of 45 years7.
4Chung Peng, 186 visa – ENS Employer Nomination Scheme (7 September2018)
<https://www.myaccessaustralia.com/186-ens-visa/ >
5 Migration Regulations 1994-schedule 2 (Cth) S 186.222
6 Migration Regulations 1994, Schedule 4(Cth)
7 Migration Act 1994 –schedule 2(Cth) s 186. 221
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Bibliography
Books
Crock, Mary, and Laurie, Berg. Immigration, refugees and forced migration: law, policy
and practice in Australia. (Federation Press, 2011).
Rubenstein, Kim. "Australian citizenship law in context." (Lawbook Company, 2002).
Statute
Migration Act 1994 –schedule 2(Cth)
Migration Regulations 1994, Schedule 4(Cth)
Internet
Chung Peng, 186 visa – ENS Employer Nomination Scheme (7 September2018)
<https://www.myaccessaustralia.com/186-ens-visa/ >
TSS Migration, Employer Nomination Scheme (2019) Employer Sponsored Visas
<https://www.tssimmigration.com.au/services/detail/employer-nomination-scheme/ >
Journal Article
Peñafiel, Justin. "Regulating migration to Australia and back to the Philippines: Applying
a ‘diaspora strategies’ framework." Singapore Journal of Tropical Geography 36, no. 2
(2015): 201-214.
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