Migration Law: Visa Applications, Breaches, Regulations, and Advice

This report delves into Australian migration law, examining the cases of Elisa Merdovic and the implications of her visa applications, particularly focusing on subclass 600, 482, and 417 visas. It analyzes the conditions attached to the visas, the eligibility criteria for each subclass, and the potential breaches of migration regulations. The report also assesses the actions of Elisa's former migration agent, highlighting any violations of the Migration Agents Regulations 1998. Furthermore, the report offers advice on Elisa's ability to apply for different visa subclasses, considering the various conditions and requirements. The discussion covers the Temporary Skill Shortage (TSS) visa (subclass 482) and the Working Holiday visa (subclass 417), including the required qualifications, sponsorships, and application processes. The report concludes with a comprehensive overview of the relevant sections of the Migration Act 1958 and related regulations, providing readers with insights into the complexities of Australian migration law.

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

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Letter of Advice:
(a): Whether Elisa Merdovic can make a valid application in Australia for Subclass 480
Visa.
In order to give proper advice to Elisa Merdovic on the matters related to migration law in
Australia it is important to understand her current situation. Firstly, as per the information Elisa
arrived from Bosnia in Australia on a Class FA subclass 600 Visitor Visa. It is also mentioned in
the case study that the Visa had following conditions attached to it;
Condition 8101: This condition bars the visa holder from working in Australia. .
Condition 8201: In case the visa holder takes up any specific course, training or study such
course, training or study must not be for a period in excess of three months.
Condition 8501: The visa holder must have adequate health insurance during his or her stay in
Australia.
Condition 8503: As per this condition the Visa holder is barred from overstaying in the country
under no circumstance.
Condition 8558: The holder of the visa is prohibited from staying more than 12 months in an 18
month period1.
A subclass 600 Visitor Visa allows tourists, family visitors and business visitors to visit the
country on a temporary basis. However, it is important to note that such visa does not allow
anyone to work or study in the country for more than 3 months. With 5 different visa streams
1 Carlos Bernal, "The Migration Of Proportionality To Australia" (2020) 1(1) Federal Law Review.

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under the subclass 600, a visa holder can stay 3, 6 or 12 months depending on the stream of Visa
received2.
Thus, from the above discussion the status about the subclass 600 Visitor Visa of Elisa Merdovic
is more than clear.
Taking into consideration the above discussion about the subclass 600 visa of Elisa it is clear that
none of the conditions, i.e. condition 8101, 8201, 8501, 8503 and 8558 bar Elisa from applying
for working class or any other visa from the immigration department of the country. Hence, it is
clear that Elisa has not violated any of the provisions of Migration Law of Australia by applying
for working class visa under subclass 417. Similarly as far as the Temporary Skill Shortage
(Class GK) Subclass 482 Visa is concerned Elisa is not barred to apply for the visa under any of
the conditions attached with the Subclass 600 Visitor Visa3.
Now the question to be answered to Elisa is whether she is eligible to make a valid application
under subclass 482 for Temporary Skill Shortage Visa (TSS). In order assess the eligibility of
Elisa it is important to know the criterions and conditions for obtaining a visa under subclass
482. The purpose of TSS visa under subclass 482 is to nominate highly skilled professionals by
the Australian employers on temporary basis4.
As per Subdivision AA section 45AA of the Migration Act 1958 a person holding a different
visa can applied for another visa provided necessary conditions are satisfied. A visa application
must be valid as per section 46 of the act to be eligible to receive a visa. Appropriate authority
will issue a visa as per section 46AA if the visa application is valid and the applicant fulfils all
2 Tom Moberly, "Australia Plans To Tighten Visa Conditions For UK Doctors" (2016) 1(1) BMJ.
3 Jan Rutkowski, "Labor Markets In EU8+2: From The Shortage Of Jobs To The Shortage Of Skilled
Workers" (2019) 3(3) SSRN Electronic Journal.
4 Daniel Crown, Alessandra Faggian and Jonathan Corcoran, "Foreign-Born Graduates And Innovation:
Evidence From An Australian Skilled Visa Program✰,✰✰,★,★★" (2020) 1(1) Research Policy.

3
the conditions and criterions. The process of obtaining a subclass 482 visa is a three staged
process; these are as following;
Sponsorship: As a standard business sponsor an employer must apply for approval of such visa.
Nomination: Lodging a nomination for the applicant or an existing holder of subclass 482 visa is
must placing proper application of such TSS visa5.
Application of Visa: The application of TSS visa under subclass 482 must be under a relevant
stream hence, the applicant must apply under a relevant stream for TSS visa.
The applicant can be within or outside Australia while applying for TSS visa under subclass 482
as long the application is not the third application of the applicant under short term stream. There
are three different visa streams under subclass 482, i.e. short term stream, medium term stream
and labour agreement6. Key eligibility requirements that an applicant must satisfy to get such
visa are enumerated below.
I. The employer of the applicant must have applied for approval of occupation which
has been mentioned in the application.
II. The employer who has sponsored the visa application must be an approved work
sponsor.
III. There must be genuine intention to work as per the nominated occupation with the
position mentioned in the application should also be genuine. .
IV. The applicant must possess necessary qualification, skills and experience necessary to
discharge his duties in the nominated position as per the application.
5 Andrew Lynch, "Control Orders In Australia: A Further Case Study In The Migration Of British Counter-
Terrorism Law" (2019) 11(3) Oxford University Commonwealth Law Journal.
6 "Skilled Visas", Lawhandbook.Sa.Gov.Au (Webpage, 2020)
<https://lawhandbook.sa.gov.au/ch24s01s02.php>.

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V. The applicant must have adequate health insurance arrangement.
Taking into consideration the discussion above it is clear that Elisa is not eligible to make a valid
application as she cannot put any condition for acceptance of sponsorship for application of TSS
visa under subclass 482. Here as per the facts it is clear that Elisa has put forwarded a condition
of accepting the sponsorship only if it guarantees that she will not have to return to Bosnia.
Since, no such condition is allowed a sponsorship will have to be condition free hence, Elisa will
not be able to make a valid application until unless she accepts the sponsorship without any
condition7.
Visa conditions 8101, 8201, 8501, 8503 and 8558 attached with subclass 600 visa of Elisa
Merdovic are explained below.
8101 bars a visa holder from working in Australia.
8201 ensures that no training, study or course taken up by a visa holder exceeds the period of
three months thus, no such course or training duration can be more than three months.
8501 ensures that a visa holder must have adequate health insurance coverage while he / she is in
Australia.
8503 condition is specifically to ensure that under no condition the visa holder overstayed the
duration in the country as per the visa.
A visa holder cannot stay more than 12 months during the 18 months period in Australia as per
condition 8558.
(b): The status of Elisa Merdovic’s Working Holiday Subclass 417 Visa:
7 Alexander Reilly, "Low-Cost Labour Or Cultural Exchange? Reforming The Working Holiday Visa
Programme" (2019) 31(7) The Economic and Labour Relations Review.

5
Working Holiday Visa under Subclass 417 allows young adults looking for an extended holiday
in Australia and to fund such extended holiday by working in the country to stay in the country
by applying for a Working Holiday Visa under Subclass 417. A detailed understanding about
Subclass 417 Visa is necessary to assess the status of Elisa’s working holiday visa8.
First working holiday visa related criterions and conditions under subclass 417:
I. The applicant must have valid passport from an eligible jurisdiction to apply for such
visa.
II. This visa allows the visa holders to work in the country during their stay.
III. The holder of first working holiday visa can apply for second working holiday visa
provided necessary conditions are satisfied9.
In this case there is no point discussing the second and third working holiday visas as the case in
point, i.e. Elisa Merdovic’s working class visa is her first working class visa. The application and
subsequent approval or rejection of such application are all governed by the provisions contained
in subdivision AA of The Migration Act 195810. Provisions related to application for visa
including the working holiday visa are contained in section 45 of subdivision AA of the
Migration Act 1958 (here in after to be referred to as the act only in this document)11. The
applicant must pay the visa charge as per section 45A to be eligible for the visa.
Earlier the conditions attached with the subclass 600 visa of Elisa, i.e. condition 8101, 8201,
8501, 8503 and 8558 have been discussed. As none of these conditions bar Elisa from applying
8 "Migration Law", Lawhandbook.Sa.Gov.Au (Webpage, 2020)
<https://lawhandbook.sa.gov.au/ch24s01.php>.
9 "Slump Sinks H1-B Visa Program" (2020) 3(3).
10 B. Lindsay Lowell and Johanna Avato, "The Wages Of Skilled Temporary Migrants: Effects Of Visa
Pathways And Job Portability" (2018) 55(7) International Migration.
11 "Migration Act 1958", Legislation.Gov.Au (Webpage, 2020)
<https://www.legislation.gov.au/Details/C2018C00337>.

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for working holiday or any other visa thus, application of Elisa for working holiday visa
(subclass 417) is not in violation with any of the provisions of the act. Thus, as long as Elisa filed
a valid application for working holiday visa and has paid necessary visa charge as per section 46
and 45A respectively there is no ground to reject the working holiday visa application of Elisa12.
However, it has been assumed that all other necessary criterions and conditions have been
fulfilled by Elisa. Even though her visa under subclass 600 was still valid and she applied for
visa under subclass 417 there is no contravention of any provision of the act13. As per the
provisions of the act the first working holiday visa granted under subclass 417 allows the visa
holder to stay in the country for a period of 12 months. Considering that Bosnian residents are
eligible to apply for subclass 417 working holiday visa in Australia and there is no condition
attached with sub class 600 visitor visa of Elisa that deny her the right to make a valid
application for the working holiday visa the status of her application for working holiday visa
expected to be granted. Since, there is no violation of any provision and assuming that Elisa has
made all necessary payments including visa charge under section 45A and the application is also
valid as per section 46 of the act the application for subclass 417 visa assumed to be granted.
Thus, the status of working holiday visa is granted14.
(c): Breaches, if any committed by the former migration agent of Elisa:
As per rule 2, 2A and 4 of the Migration Agents Regulations 1998 a migration agent must
disclose all information related to the migration law in the country to his client to ensure that he /
she is aware of any contravention with the migration law in the country. As per the Migration
Agents Regulations 1998 each and everything between the client and the migration agent must
12 "Temporary Skill Shortage (Class GK) Subclass 482 | Anzscosearch", Anzscosearch (Webpage, 2020)
<https://www.anzscosearch.com/temporary-skill-shortage-tss-482-visa/>.
13 Trevor Wilson, "A Leap Into The Future: The Australia-Japan Working Holiday Agreement And
Immigration Policy" (2019) 35(9) Japanese Studies.
14 Iain B Gosbell, "VISA And Hvisa In Hospitals" (2019) 37(3) Microbiology Australia.

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be in writing and documented for future reference. There should be proper communication
between a migration agent and his client to ensure that the client is in complete know of the
various rules and regulations related to the application for visa and other important factors. In
addition the rules and regulations governing the migration agents in the country also require the
migration agents to charge proper fees for visa application and issue proper receipts against such
charge collected from the client. The Migration Act 1958 requires the visa charge to be in terms
of section 45A of the act thus, a migration agent must not charge anything in excess of the
applicable charge for application of visa and must also issue proper receipt against such charge15.
Taking into consideration the facts it is clear that the former migration agent of Elisa has
breached number of provisions while dealing with her. Firstly, the former migration agent has
not maintained anything in writing thus, there is no proof of interaction and events including
transaction between Elisa and her former migration agent. In addition the former migration agent
has also not issued any written receipts against the payment made by Elisa. Finally, the migration
agent has failed to up-date the address of Elisa with the Department of Home Affairs. As a result
the outcome of working holiday visa application (subclass 417) is yet not known16.
Thus, there have been number of contraventions of rules and regulations that govern the
migration agents in Australia, i.e. Migration Agents Regulations 1998.
Conclusion:
The above discussion has definitely enhanced the knowledge of readers on the migration law in
Australia. The fact that there are number of streams and visa categories available for the
interested persons to apply for visas to stay or work in the country allow such persons to contact
15 B. Lindsay Lowell and Johanna Avato, "The Wages Of Skilled Temporary Migrants: Effects Of Visa
Pathways And Job Portability" (2018) 55(7) International Migration.
16 "Working Holiday Visa (Subclass 417)", Immi.Homeaffairs.Gov.Au (Webpage, 2020)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417>.

8
registered migration agents in the country to apply for different visas in a valid manner as per
section 46 of the Migration Act 1958. In this case Elisa though have rarely contravened any
provisions of the act but the only contravention of sponsorship aspect of subclass 482 TSS Visa
has made her ineligible for such visa.

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References:
"Migration Act 1958", Legislation.Gov.Au (Webpage, 2020)
<https://www.legislation.gov.au/Details/C2018C00337>
"Migration Law", Lawhandbook.Sa.Gov.Au (Webpage, 2020)
<https://lawhandbook.sa.gov.au/ch24s01.php>
"Skilled Visas", Lawhandbook.Sa.Gov.Au (Webpage, 2020)
<https://lawhandbook.sa.gov.au/ch24s01s02.php>
"Slump Sinks H1-B Visa Program" (2020) 3(3)
"Temporary Skill Shortage (Class GK) Subclass 482 | Anzscosearch", Anzscosearch (Webpage,
2020) <https://www.anzscosearch.com/temporary-skill-shortage-tss-482-visa/>
"Working Holiday Visa (Subclass 417)", Immi.Homeaffairs.Gov.Au (Webpage, 2020)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417>
Bernal, Carlos, "The Migration Of Proportionality To Australia" (2020) 1(1) Federal Law
Review
Crown, Daniel, Alessandra Faggian and Jonathan Corcoran, "Foreign-Born Graduates And
Innovation: Evidence From An Australian Skilled Visa Program✰,✰✰,★,★★" (2020)
1(1) Research Policy
Gosbell, Iain B, "VISA And Hvisa In Hospitals" (2019) 37(3) Microbiology Australia
Green, David, "Low Benefit With A High Cost: An Assessment Of Australia's Highly Skilled
Foreign Professional Visa" (2018) 2(2) SSRN Electronic Journal

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Lindsay Lowell, B. and Johanna Avato, "The Wages Of Skilled Temporary Migrants: Effects Of
Visa Pathways And Job Portability" (2018) 55(7) International Migration
Lynch, Andrew, "Control Orders In Australia: A Further Case Study In The Migration Of British
Counter-Terrorism Law" (2019) 11(3) Oxford University Commonwealth Law Journal
Moberly, Tom, "Australia Plans To Tighten Visa Conditions For UK Doctors" (2016) 1(1) BMJ
Reilly, Alexander, "Low-Cost Labour Or Cultural Exchange? Reforming The Working Holiday
Visa Programme" (2019) 31(7) The Economic and Labour Relations Review
Rutkowski, Jan, "Labor Markets In EU8+2: From The Shortage Of Jobs To The Shortage Of
Skilled Workers" (2019) 3(3) SSRN Electronic Journal
Wilson, Trevor, "A Leap Into The Future: The Australia-Japan Working Holiday Agreement
And Immigration Policy" (2019) 35(9) Japanese Studies