Immigration Law Case Study: Visa Options for Skilled Workers

This case study examines the immigration law landscape in Australia, specifically focusing on visa options for skilled workers, particularly engineers. It presents a scenario involving Jacob Hassan, a skilled engineer from Britain, and David Meyer, an Australian businessman, exploring the potential for Hassan to work in Australia. The case study delves into various visa subclasses, including the Temporary Skilled Subclass 482 Visa, the Global Talent Visa, and the Distinguished Talent Visa, outlining the requirements, regulations, and processes associated with each. It analyzes the roles of sponsorship, skills assessments, English language proficiency, and relevant legislation, such as the Migration Act 1958 and the Migration Regulations 1994. The case study also highlights the importance of adhering to labor market testing and fair work practices. The analysis offers insights into the complexities of Australian immigration law, providing practical guidance for both skilled workers and potential sponsors navigating the visa application process.

Immigration Law 1
Immigration Law; Case Study
Student’s Name
Institution
Course
Tutor
Date

Immigration Law 2
To: Jacob Hassan & Mr. Meyer
From:
Subject: Immigration Law; Case Study
INTRODUCTION
Most countries in the world have over the past years strived to open their economic hands to
skilled foreign workers with brilliant business ideas. This is because these categories of workers
help in growing the economy of the relevant country. Australia, just like other states, has not
been left behind in this initiative; that is, the admission of skilled, talented immigrants into
Australia to conduct business.1 It is without a doubt that no country is immune to experiencing a
shortage in the number of skilled labourers. Therefore, it is essential that as a state, there should
be laws, policies, and regulations that are geared towards addressing and providing solutions to
such skilled labour shortages by allowing skilled immigrants to enter and grow the economy of
Australia through their work. Jacob Hassan is a renowned engineer in Britain. He possesses great
prowess and knowledge in petroleum engineering as his work is unique and widespread across
Britain. Jacob's name is echoed throughout Great Britain as having been the creator of the
electric car that Prince Harry used during the royal wedding. However, due to the heated Brexit
debate that is straining Britain's relationship with other countries, Jacob is unsure whether Britain
would be the place for him to realize his dream of creating a hydrogen-based fuel for cars.
Luckily enough, he meets David Meyer - a well-established Australian businessman and head of
Innovative Technology and Engineering, and he expresses his ideas and desire to work in
Australia if he was sponsored by David. This work seeks to give options to both Jacob Hassan
and Mr. Meyer on which they could explore thus enabling them to facilitate Jacobs travel to
Australia so that he could realize and achieve his dream of the creating a fuel that preserves the
environment.
Regulations, Policies, and Legislations; Discussion
1 Kathryn A Canas and Harris Sondak, Opportunities And Challenges of Workplace Diversity (Perason, 2014)

Immigration Law 3
With regards to section 30 of the Immigration Act of 19582, the Australian government has
created multiple visas for which one may apply if they desire to visit Australia for multiple
reasons. Section 30(2) of this Act allows you to visit Australia on a temporary basis. Temporary
visas are applicable when one is visiting Australia for a particular event. This subsection also
enables you to apply for a temporary permit to help them secure a chance of working in
Australia.
Although section 30 of the Immigration Act 1958 allows you to apply for various types of visas,
s41 of this Act gives the government the freedom to control and limit the kind of activity one
may undertake in Australia. This is achieved through the introduction of various subclasses of
visas. If Jacob Hassan is interested in working in Australia, these visa subclasses include the
Temporary Skilled Subclass 482 Visa and the Global Temporary Visa Australia. The Temporary
Skilled Subclass 482 Visa is an improvement to the visa Subclass 457. These visa classes would
enable Jacob Hassan to travel to Australia and Innovation Technology and Engineering to be in a
position sponsor Jacob Hassan into Australia as his skills are unmatched by Australian citizens.
However, there are specific requirements that Jacob Hassan has to meet to qualify for the TSS
visa. These requirements include:
Is Hassan trained for the Medium TSS 482 Visa
With this kind of visa, Jacob is at liberty to work in Australia. Also, as long as the visa is still
valid, Hassan can travel to and from Australia at his own will. According to the repealed
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary
Reforms), 2018, the validity of the TSS Visa lasts for only four years since the application.
However, Jacob could apply for a permanency residency after three years since the acquisition of
the 482 Visa. An Australian based business can sponsor Jacob only when they meet the TSS 482
Visa that was created by the 2019 amendment; that is the Migration Amendment (New Skilled
Regional Visas) Regulations.3
The foreigner's job must fall under the Medium Long-Term Strategic Skills List (MLTSSL). This
is a regulation created by the Migration Regulation 1994 and must be adhered to by any skilled
2 Immigration Act of 1958
3 Migration Amendment (New Skilled Regional Visas) Regulations 2019

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foreign worker. Lucky for Jacob Hassan he is a fully-fledged engineer in Britain. Engineering is
listed as one of the occupations in the MLTSSL. Though this Hassan is eligible to apply for a
medium long-term 482 visa that on grant could be enhanced to permanency if Hassan so wishes.4
Secondly, to carry out business effectively, effective communication is an essential ingredient. It
is a requirement that for one to work in Australia, they must possess proficiency in the English
language. It is a condition that you must take the IELTS 5 test and score a minimum of 5.0 or its
equivalent. However, the government, through the interpretation of the Migration Act 1958 and
Migration Agents Regulations 1998, has provided exemptions for undertaking IELTS 5.
Regardless of Hassan being of Iraqi descent, he has lived in Britain since 2007 and has since
acquired the British Citizenship. Going by the amount of time Hassan has spent in Britain, he
must possess high English proficiency; therefore, he is exempted from the undertaking the
IELTS 5.5
Furthermore, Hassan must have a minimum of two years working in the field relevant to his area
of professional specialization. It is mandatory that the years of experience must fall within five
years to the run-up to the application of the TSS 282 Visa. Jacob has been working with Jaguar
Motors since 2015 to the time he met Mr. Meyer. Not only does Jacob have the minimum of two
years working experience as an engineer but also he has gained the expertise within the five-year
window that is required; this is because although he would like to come work in Australia, he is
continuing with his current job at Jaguar Motors. If Hassan becomes successful in his
application, it is expected that he engages solely in dealings related to the description stated in
the form for the visa failure to which both Jacob and the employer (David Meyer) would be held
liable for infringing on the Migration Amendment (Reform of Employer Sanctions) Act 2013.6
The Global Temporary Visa Australia
The Global Talent Scheme was created in 2018. Since its creation, the government of Australia
has launched a successful pilot program that commenced on the 1st of July 2018. The purpose of
this initiative is to serve the same purpose as the 482 visas. These two instruments are used to
facilitate the movement of brilliant minds like that of Hassan - who has cutting-edge engineering
4 Regulation 1.03 of Migration Regulations 1994
5 See explanatory on Migration Act 1958 and Migration Agents Regulation 1998
6 Migration Amendment (Reform of Employer Sanctions) Act 2013

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idea into Australia so that their input may be used in building the Australian economy. This is
achieved through the selection of outstanding individuals for sponsorship by accredited business
sponsors in Australia. The main initiative of the Global Talent Scheme is to bring persons from
around the world who are specialized in any STEM (Science Technology Engineering and
Mathematics) to showcase their talents and ideas to convince sponsors to employ them.7
Jacob may enroll for the annual Global Talent Scheme because he his idea of creating a
hydrogen-based fuel stands out and is alien to him. Besides the uniqueness of the concept, it also
serves to save the environment as the burning of the fuel by cars does not produce fumes that
increase global warming. Once Hassan has enrolled the land himself an accredited sponsor or
better ITE may also enroll and select Jacob as a beneficiary of their sponsorship. The GTS is
complementary to the TSS visa; therefore, all the requirements dictated under the Subclass 482
Visa must be met in the attempt to employ Hassan through accredited sponsorship by ITE.
The Distinguished Talent Visa 128/158 Visa8
It takes more than just books for one to succeed in engineering. The engineering field calls for
exceptional creativity and talent that classroom work. It is without a doubt that Hassan is not
only well educated in petroleum engineering but also exudes talent and creativity in the way that
he applies his knowledge and skills. His distinguished works include the creation of an electric
car that was used by Prince Harry during his wedding. This achievement is echoed by many
across Britain. Also, Hassan's idea of being able to separate hydrogen from the components of
water, thus creating a hydrogen fuel is mind-blowing and if realized, could mark a new era in the
world of energy.
ITE Sponsorship for Jacob Hassan
This is an alternative that could help fly Jacob to Australia for a business venture. It takes the
adherence to the rules and regulations to sponsor Jacob to Australia by Meyer through the ITE.
Job recruitment is a significant problem that employers have to grapple with most of the times.
Most of the time, the employers face a shortage of skilled personnel that is required in carrying
out the objectives of their business.
7 See; The Global Talent Scheme (2018)
8 Weatherill, Ross Anthony [2004] MRTA 7153

Immigration Law 6
David Meyer has promised Jacob Hassan that he is more than willing to sponsor Jacob in his
endeavors; however, the execution of this promise must be done by the obligations listed in TSS
visa 482. The movement of skilled foreign workers in Australia is controlled by the World Trade
Organization General Agreement on Trade in Service (WTO GAT) 9
First and foremost, David Meyer should ensure that ITE is approved as an accredited sponsor for
it to sponsor Jacob Hassan. To be approved, an application must be made to the Department of
Home Affairs seeking approval as an accredited sponsor. On approval of the application, a
nomination should be fronted matching the Job description of Hassan's qualifications as an
engineer interested in the manufacturing of hydrogen fuel. This nomination must be in line with
the MTLSSL.
Secondly, ITE should be able to ascertain that no Australian citizen nor resident has been found
matching the nomination requirement save for Jacob Hassan, a foreign worker. To achieve this,
ITE must carry out Labour Market Testing unless recommended otherwise by any treaty or trade
agreement such as the International Trade Obligation.10 This exemption is relevant when it
comes to the recruitment of the citizens and residents of countries such as Canada and New
Zealand. Because Hassan is British, ITE must carry on with LMT as stipulate in s11F of Code
for the Tendering and Performance of Building Work 2016; that is, an advertisement must be run
of the government websites and other favorite job searching engines within Australia for twenty-
eight days. On the expiry of the twenty-eight days, ITE has a maximum of four months to
nominate Jacob Hassan as the best fit candidate for the advertised position.11
Once ITE has concluded its nomination, Hassan has to be informed for him to apply for the
nominated position as the best candidate who has to meet the set standard and requirements
under the MLTSS. For a successful nomination, the position must be genuine and fulltime. It is
also essential to stick to the Job description of the appointment that TSS 482 was granted to avoid
the consequences of liability for the breach of the visa terms.12
9World Trade Organization General Agreement on Trade in Services 1994
10 1840GBA(2) Migration Act 1958, read with s44 of the Legislative Act of 2003 and the Migrations Amendment
(Temporary Sponsored Visas) Act 2013
11 Code for the Tendering and Performance of Building Work 2016
12 ibid

Immigration Law 7
As an accredited sponsor, it is vital that ITE pay the Nomination Contribution Training. This
payment is made depending on the annual turnover ITE. For instance, if the annual turnover is
more the $10M, then the remission ought to be $1800. If the turnover is anything less than
$10M, the remission should be $1200.13
Once Hassan is sponsored, he must be paid per the Fair Work Act of 2009. It has been the
responsibility of the Australian government that skilled foreign workers be paid at a rate that
mirrors the standards the Australian citizens and residents earn. Historically foreign workers
have been paid meager wages and compelled to work for longer hours. Thus the government
expects ITE to pay Hassan following the relevant laws14 or while relaying to prevailing rates that
serve to give a rough estimate of what Hassan should be paid.
Conclusion
Hassan has eligible to apply for the following visa classes successfully:
i. The Temporary Skilled Shortage Subclass 482 Visa
ii. The Global Temporary Visa Australia
iii. The Distinguished Talents Visa 128/158 Visa
ITE may also apply to become an accredited sponsor under the Temporary Skilled Shortage
Subclass 482 Visa, to enable them to sponsor Jacob Hassan through nominating him for
employment.
13 Migration Amendment Act (Skilling Australians Fund) Bill 2017 and Migration (Skilling Australians Funds)
Charges Bill 2017)
14 Fair Work Act of 2009

Immigration Law 8
Bibliography
Cañas, Kathryn A and Harris Sondak, Opportunities And Challenges Of Workplace Diversity
(Pearson, 2014)
Weatherilll, Ross Anthony [2004] MRTA 7153
Migration Amendment Act (Skilling Australians Fund) Bill 2017
Migration (Skilling Australians Funds) Charges Bill 2017
Migration Agents Regulation 1998 No. 53 of 1998
Migration Act 1958 No. 62 of 1958
Fair Work Act 2009 No. 28 of 2009
Legislative Instruments Act of 2003 (LIA)
Migrations Amendment (Temporary Sponsored Visas) Act 2013
Tendering and Performance of Building Work 2016 (Code)
Migration Amendment (Reform of Employer Sanctions) Act 2013
The Global Talent Scheme (2018) Retrieved from
World Trade Organization General Agreement on Trade in Services 1994
Migration Amendment (Reform of Employer Sanctions) Act 2013
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary
Reforms) Regulations 2018
Migration Regulations 1994 (Cth) No. 268 of 1994
Migration Amendment (New Skilled Regional Visas) Regulations 2019