Migration Law: Analysis of Australian Visa System (LML6004)

This report analyzes the Australian migration law and visa system, focusing on a case study involving a protection visa holder and potential employer sponsorship. It examines the implications of a husband's visa cancellation on his wife's visa status, specifically addressing the conditions of the protection visa (subclass 866) and the Ministerial Intervention under section 488 of the Migration Act 1958. The report also explores the eligibility criteria for permanent visas through employer sponsorship and the Skilled Occupations List, addressing the rights of immigrant workers, particularly regarding wage withholding, and the legal consequences for employers engaging in such practices. The report references the Fair Work Amendment Act 2017 and relevant case law, providing a comprehensive overview of the legal framework governing migration and worker rights in Australia.

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Australian Migration Law And Visa System
Student’s Name
Institutional Affiliation

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Introduction
Migration is the movement of people from one place to another, and in this case, from
a country to another. Australia is one of the countries in the world with a developed system of
immigration into their country. People migrate for different reasons, but moving into
Australia will be majorly dependent on the basis as to why one is moving there. The only way
for a skilled worker to move to Australia is through the General Skilled Migration Program1.
Of course, there are laws governing means of selection and one's stay, and they have to be
adhered to fully.
How will her visa be affected if her husband's protection visa is canceled?
Under the Australian protection visa subclass 8662, This visa is given to persons
that are in Australia and are seeking protection from the government. This visa allows one to
stay permanently in Australia on the grounds that you arrived in Australia using a valid visa.
The holder of this visa will also be required to meet the Australian protection obligations.
With this visa, one is allowed to stay, work, or even study in Australia permanently. So as the
first issue, in this case, this visa is supposed to be permanent and not temporary where it
could be recalled.
Although under the Australian law in the Ministerial Intervention under section 488 of
the Migration Act of the year 19583, a decision to refuse to give a protection visa only
occurs when one has not adhered to the Australian protection obligations. There is also a
provision that people from Afghanistan will be given a priority when referred. As in our case,
Hamdan Farzi has not engaged or carried himself in a manner that contravenes the Australian
1 Australia.Gov.Au (Webpage, 2019) <https://www.australia.gov.au/information-and-services/immigration-and-
visas>.
2 Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-
listing/protection-866>.
3, "Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)
<https://www.legislation.gov.au/Details/C2017C00384>.

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protection obligations. So with this in mind, the law provides for permanent residency and
should not be recalled unless otherwise in a case scenario, as stated above. This protection
visa involves the holder staying in Australia with family members that are eligible to apply
for the visa and are in Australia at the time of application. Since Oanh Thi Tran is Australia
and the two are married, they are both to be allowed to stay in Australia.
Is she eligible to apply for a permanent visa with sponsorship from either her current
employer in Springvale or from the pharmacy in Mildura?
On 18th April 2017, the country introduced the Skilled Occupations List through
which points are awarded to skilled personnel that wants to immigrate to Australia. Those
with the highest scores are then allowed to immigrate as their demand is higher. Numerous
students migrate to Australia under the skill select migration program, but the question is,
what happens after they are through with their studies? What is the criterion used by the
immigration department to offer them permanent residence if at all they need one? The
Subclass 573 of the Higher Education Sector, holds that; students can be provided visas to
study in Australia after they have confirmed a place on a course at an Australian University.
For one to eligible for this visa they have to prove some requirements which include;
1) One is having enough funds to facilitate tuition, travel, and maintenance for
themselves.
2) To prove that they have been accepted on to a Higher Education course at any
Australian University.
3) They have met the health requirement, which includes one having health insurance.
4) Character requirements, and this usually involves a criminal record check.
5) They can satisfy the Australian authorities that they will not overstay their visas.

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There is absolutely no guarantee of being given a permanent visa after they are
through with their studies, notwithstanding if the course they are taking is in the SOL4. Since
the student visa has expired, in Australia, one (Oanh Thi Tran) can be sponsored to reside in
the country without necessarily needing a skill with an employer. This is usually referred to
as a workstream permanent visa. Employers are allowed to sponsor people who have specific
skill sets that could be important to them and the country at large. It is essential that one has
to have skills that are in the shortage list5.
There is an eligibility test that one has to pass for them to be granted a permanent
work visa. The basic test includes;
a. The applicant must possess the required skills for the job.
b. There must be an Australian employer to nominate the applicant.
c. Health and character requirements must be met. These, as discussed above,
including having health insurance and having a criminal check record,
respectively.
This type of visa allows applicants to stay and work in Australia as a citizen permanently, of
course, while following obligations.
Is the Pharmacy allowed to do this?
When one has already obtained an Australian visa, they are obligated to follow all the rules
in the country. This also then means that they should be treated fairly and per the Australian
laws as regular citizens are usually treated. Mistreatment of immigrant workers is an
occurrence that takes place in almost every place in the world Australia notwithstanding6.
4 Grant Harmon, "Australia As An Higher Education Exporter" [2015] (42) International Higher Education.
5 Fidelma Breen, "Australian Immigration Policy In Practice: A Case Study Of Skill Recognition And
Qualification Transferability Amongst Irish 457 Visa Holders" (2016) 47(4) Australian Geographer.
6Temesgen Kifle, "The Effect Of Immigration On The Earnings Of Native-Born Workers: Evidence From
Australia" (2009) 38(2) The Journal of Socio-Economics.

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This usually occurs in the case of illegal immigrants because they cannot report to authorities
as they could be deported. In our case, Oanh Thi Tran is a legal worker immigrant and has
rights that should be protected. So, the pharmacy is not allowed to withhold the salary of any
worker, not minding where the worker's origin is.
Would they be committing a crime if they did proceed on this basis?
Yes, the pharmacy would be committing a crime not only under immigration law but also
under labor law and human rights law7. A study in Australia shows that despite the existence
of a Fair Work Amendment Act of the year 2017, there are still numerous cases of immigrant
exploitation in the country, which is wrong8. The different categories of visas in Australia
provide for different privileges and constraints, but the withholding of pay isn't one of them.
What penalty, if any, would they face if convicted?
As was held in “Fair Work Ombudsman V. Bosen Pty Ltd (Industrial) 20119”, the
franchise operators were fined because they had been significantly exploiting workers by
withholding wages. This was despite the threats from the franchise to cancel visas of the
students if they reported the matter. There are penalties they could face if they engage in such
conduct, and the court is but one of them. There is still an issue because successful litigation
does not necessarily mean that the wages will be recuperated, as in the above case. Going
forward, there should be a reliable means to solve such issues.
Bibliography
Books/ Articles/ reports
7 Zuzanna Muskat-Gorska, "European Court Of Human Rights Holds That Withholding Wages Can Be An
Element Of Forced Labor" (2018) 4(1) International Labor Rights Case Law journal.
8 Cherkupalli V Commonwealth Of Australia (Department Of Immigration & Citizenship) (Australian Human
Rights Commission, 2012).
9 Journals.Sagepub.Com (Webpage, 2019)
<https://journals.sagepub.com/doi/pdf/10.1177/1037969X17748209>.

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Breen, Fidelma, "Australian Immigration Policy In Practice: A Case Study Of Skill
Recognition And Qualification Transferability Amongst Irish 457 Visa Holders"
(2016) 47(4) Australian Geographer
Harmon, Grant, "Australia As An Higher Education Exporter" [2015] (42) International
Higher Education
Harmon, Grant, "Australia As An Higher Education Exporter" [2015] (42) International
Higher Education
Kifle, Temesgen, "The Effect Of Immigration On The Earnings Of Native-Born Workers:
Evidence From Australia" (2009) 38(2) The Journal of Socio-Economics
Muskat-Gorska, Zuzanna, "European Court Of Human Rights Holds That Withholding
Wages Can Be An Element Of Forced Labor" (2018) 4(1) International Labor Rights
Case Law journal
Online sources
Australia.Gov.Au (Webpage, 2019) <https://www.australia.gov.au/information-and-
services/immigration-and-visas>
Citizenship) (Australian Human Rights Commission, 2012)
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-
a-visa/visa-listing/protection-866>
Journals.Sagepub.Com (Webpage, 2019)
https://journals.sagepub.com/doi/pdf/10.1177/1037969X17748209
Statutes
"Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)

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https://www.legislation.gov.au/Details/C2017C00384
Cases
Cherkupalli V Commonwealth Of Australia (Department Of Immigration &