LML6004 - Employer Sponsored Visas in Australia: Migration Law

This report provides an analysis of employer-sponsored visas in Australia, focusing on subclass 457 temporary work skilled visas. It details the requirements for businesses to become approved sponsors, the nomination process, and the obligations of visa holders, including compliance with condition 8107 and other migration regulations. The report also addresses the conduct of registered migration agents, emphasizing their duty to avoid conflicts of interest and act in the client's best legal interest as per the Migration Agents Code of Conduct. The analysis recommends that Jacklyn Fisher apply for a 457 visa due to her intention to work temporarily in Australia and highlights the key requirements for both the business and the nominee to obtain the visa.

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

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To
The Client
Respected Sir
In this letter of advice I would provide you information in relation to employer sponsor
visas available in Australia. The information provided to you would be based on the types of visa
available, the sponsorship, nomination and other requirements to get the visa and what the visa
allows and restricts a visa holder to do. There are three types of employer sponsored visa which
can be selected from in order to temporarily or permanently stay and work in Australia. Subclass
457 temporary work skilled visa is one of them. Under this visa Overseas or Australian
businesses have the right to sponsor and employ staff belonging to other countries with the help
of this visa. This visa can only be obtained by those people who are in an occupation which is
present in the consolidated skilled occupation list. Through the use of this visa a person can live
and work in Australia for a period of 4 years and can also bring their family members to the
country. This visa can also be extended to permanent residency through the use of subclass 186,
187 visas. The criteria for approval is provided in regulation 2.72 of Migration regulation 19941.
The process for nomination is provided under s 2.73 of MR 19942. The criteria for standard
business sponsor have been provided under reg 2.59 of MR 19943. The rules of providing
approval are given under reg 2.61 of MR 19944.
In order to make a claim for this visa a person has to be sponsored by an approved
business in Australia. The person is also required to have certain specific skills through which he
1 Migration regulation 1994 (Cth) reg 2.72
2 Migration regulation 1994 (Cth) reg 2.73
3 Migration regulation 1994 (Cth) reg 2.59
4 Migration regulation 1994 (Cth) reg 2.61

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or she can satisfy the position which has been nominated by the approved business. The person
must also have specific level of English speaking requirements for the purpose of being able to
satisfy requirements under this visa. The occupation of the person has to be a skilled occupation
which has been provided approval by the Australian government. The person who has made an
application for this visa has to show that he has the experience and skill which is necessary to
carry out the work for the nominated occupation. It is also the duty of the approved business to
provide such person with necessary registration and licensing information. A Police certificate is
also needed before an application for this visa is launched in relation to the character of the
person. The person may also be required to undergo a skill assessment in Australia for the
purpose of meeting the eligibility criteria.
In order to become a sponsor a business must have the capacity to show that they have
been lawfully operating their business in the country and no relevant adverse information is
present in relation to the Business. The business also has to show that they have complied with a
few specific requirements which include the demonstration that they are committed to employ
local people as labour and have non-discriminatory recruitment practices. In order to become
approved sponsor a business may apply to be a standard business sponsor or may negotiate a
Labour agreement. A business can only have one standard business sponsorship approved at a
given span of time which is valid for a period of 5 years. This time frame can be extended
anytime by lodgement of variation application. In case the business is an Australian business it
must attest in writing that it has a strong record of employing local labour. The business must
also be able to provide evidence that there is a systematic and genuine shortage of skilled worker
and suitable qualified workers in Australia are not available. The business must also prove that
they have commitment of training Australians. In case the application to become a sponsor has

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been approved the department of immigration will provide the business with a letter stating that
date when the sponsorship comes to an end, the sponsorship agreement number and the
obligations which the business has under the sponsorship.
For the purpose of attaining this visa the process of nomination is also required along
with the process of sponsorship. This is the process under which the employer identifies a
position which is to be satisfied by a skilled worker who is not an Australian. The nomination is
required in relation to both labour agreement and standard business sponsor. In the process of
nomination it is identified whether there is any relevance in the position which is to be filled,
what are the experience and skills required to satisfy the position, the salary rate of the position
and the salary which is to be provided to the oversea employee, the details of the oversea
employee who is potentially to be appointed and where would the employee be working in
Australia. An approval in relation to the nomination comes to an end as soon as a withdrawal of
the nomination is made or 12 months after the nomination is approved. The nomination can be
lodged only by an approved business sponsor who has already launched a sponsorship
application5. The nomination can also be made together with the sponsorship application.
Nomination can be made in case the following Minimum requirements have been satisfied. The
nomination must include the name of the skilled worker and in which state of the country they
are going to work. The nomination must comply with all direct employer requirements.
Employment terms and conditions which satisfy certain requirements have to be provided. The
nomination also has to meet the genuineness criteria. The temporary skilled migrant income
threshold provisions also have to be satisfied by the nomination. There must also not be any
adverse information in the nomination. In case a business is a standard business sponsor the
5 Schilling, Meredith. "Migration law ." (2016) Victorian Bar News 160: 96.

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person who has been nominated has to be eligible for getting the subclass 457 visa. In situation
where a sponsor wants to employ a person who is not listed of eligible skilled occupation it can
be done to a labour agreement. The nomination has to identify the person who has been
nominated. Unless the oversea worker is to be paid $250,000 or more, equivalent terms and
conditions are to be provided to the potential worker as compared to the Australian workers.
In case visa 457 has been provided to a person there are certain mandatory requirements
which have to be satisfied. The first mandatory condition is condition 8107 imposed by the
migration regulations6. Under this condition the nominated person has to work only for the
nominated position. The work has to be started within a period of 90 days after the person has
come to Australia in case the person was outside Australia when the visa had been granted. the
person is only allowed to work for the sponsor who has nominated the person in the position and
not for any other person. The person must not stop employment with the approved sponsor for a
period of more than 60 continuous days. The other conditions which have been imposed on this
visa include condition 8501 and other conditions like 8502 8506 and 85257.
Therefore in relation to the employer sponsored visa for Jacklyn Fisher it is best
recommended that an application for 457 visa is made as there is no intention on the part of
Jacklyn Fisher to reside in Australia on a permanent basis. She would be able to reside and work
in Australia through this visa once she clears the all requirements and leave the country when her
employment in over. In addition as her salary is more than $250000 it would not be mandatory to
provide her with equivalent terms and conditions. Your business has to make an application to
become an approved business sponsor and also nominate Jacklyn Fisher in the position which is
6 Berg, Laurie. Migrant Rights at Work: Law's precariousness at the intersection of immigration
and labour. (Routledge, 2015).
7 Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for
Temporary Migrant Workers so Fraught? A Perspective from Australia." (2016).

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required to be satisfied. According to the facts your business seems to be a reputed business as its
has a high annual turnover, having more than 100 employees and operating for a period of 32
years. The role which you wish to nominate is also rare and the person whom you want to
nominate for this role many be mandatorily required to fulfill your contractual obligations with
the Australian government. The experiences and skills possessed by the nominee also seem to be
adequate to satisfy the position for which she has been nominated8. All primary requirements in
relation to getting an employer sponsored visa have been highlighted for you. In case you have
any other questions feel free to contact me in the future.
Question 2
The conduct of the registered migration agents is governed through the provisions of the
Migration Agents code of conduct provided in Migration Regulation 1998 schedule 29. Part 2 of
the code deals with the standards of professional conduct of a migration agents. It has been
provided by provision 2.1 that it is the duty of the migration agent to always work in accordance
to the rules of law and the legal interest of the client10. They must deal with the clients fairly,
diligently and competently. The code expressly clarifies through provision 2.1A that a registered
migration agent should not accept anyone in form of a client in case the gent would be in a
position of conflict of interest. Conflict of interest may arise if there had been previous dealing
with the person by the agent or has the intention of supporting the person in the capacity of an
agent like a marriage celebrant11. Even if there is any other kind of interest which would
legitimately affect the interest of the client the agent would be deemed to have a conflict of
8 Dauvergne, Catherine. "Making people illegal." (2017) Migrants and Rights. Routledge,. 77-94.
9 Migration regulation 1998 (Cth) sch 2
10 Wells, Lydia. "No longer a'migration agent': Reforms to the regulation of lawyers practising in
immigration law." Brief 44.9 (2017): 25.
11 Hirsch, Asher Lazarus. "The Borders Beyond the Border: Australia’s Extraterritorial Migration
Controls." (2017) Refugee Survey Quarterly 36.3: 48-80.

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interest position. Provisions of 2.1B clarify that in case it is clear that the registered agent is in a
position of conflict of interest which respect to the client, as soon as practicable but within a
period of 14 days taking into consideration the interest of the client has to notify the client with
respect to the conflict of interest, advise the client that he cannot act for the client under the code,
tell the client to hire another registered migration agent and prevent any further dealing with the
client in capacity of an agent like the situation where the client has terminated the agency. It is
also the duty of the agent as soon as practicable but within a period of 14 days to inform the
department that he is not acting any longer in the capacity of an agent for the client.
The present facts provide that Jim and Owen wish to ensure that I only act on behalf of
their company and not the visa applicant. This is because in the past they have had experience of
people previously employed by them embellished their prior history and records in relation to
employment. For the purpose of avoiding conflict of interest it is important for me to only act for
one client and not for both of this. This is because in this situation I would not be able to act for
the best interest of both the clients at the same time. The best interest of the employee would not
be the best interest of the employer. Provisions of 2.1B clarify that in case it is clear that the
registered agent is in a position of conflict of interest which respect to the client, as soon as
practicable but within a period of 14 days taking into consideration the interest of the client has
to notify the client with respect to the conflict of interest, advise the client that he cannot act for
the client under the code, tell the client to hire another registered migration agent and prevent
any further dealing with the client in capacity of an agent like the situation where the client has
terminated the agency. It is also the duty of the agent as soon as practicable but within a period
of 14 days to inform the department that he is not acting any longer in the capacity of an agent
for the client. Therefore in relation to the code I must also do the same and inform one of the

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clients that I am not going to work for them as I am not allowed to do so under the code of
conduct.
Thanking You

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Reference
Berg, Laurie. Migrant Rights at Work: Law's precariousness at the intersection of immigration
and labour. (Routledge, 2015).
Dauvergne, Catherine. "Making people illegal." (2017) Migrants and Rights. Routledge,. 77-94.
Hirsch, Asher Lazarus. "The Borders Beyond the Border: Australia’s Extraterritorial Migration
Controls." (2017) Refugee Survey Quarterly 36.3: 48-80.
Migration regulation 1994 (Cth)
Migration regulation 1998 (Cth)
Schilling, Meredith. "Migration law ." (2016) Victorian Bar News 160: 96.
Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for
Temporary Migrant Workers so Fraught? A Perspective from Australia." (2016).
Wells, Lydia. "No longer a'migration agent': Reforms to the regulation of lawyers practising in
immigration law." Brief 44.9 (2017): 25.