LML6004 Assignment: TSS Visa Employer and Applicant Requirements

This letter of advice provides a detailed explanation of the requirements for both employers and visa applicants under the Temporary Skill Shortage (TSS) Visa (subclass 482) in Australia. It references the Migration Act 1994 and Migration Regulations 1994, outlining the visa's streams (Short-Term, M...Read More

Migration Law

LETTER OF ADVICE
To: Athol Macaron
From:
Subject: explanation relating to requirements for both employer and visa applicant for
Temporary Skill Shortage Visa.
TEMPORARY SKILL SHORTAGE (TSS) VISA
Division 2.15 of Migration Regulations 1994 deals with provision relating to terms of approval
of sponsorship. Further, it has been specified in section 2.63 of Migration Act 1994 that
temporary visa is for that person who wants to enter the country for employment purpose. In the
year 2018, the government of Australia introduced new work visa, the subclass 482 TSS visa in
substitution of the 457 visa. The visa came into effect on 18th March 2018 comprising
specification relating to three occupation list as follows:
 Medium to long term skills: It comprises occupation which is considered as ‘in demand
for a longer period’.
 Short term skilled occupation: It comprises job considered as ‘in demand for short term’.
 Regional Occupation List: It was developed to cater to applications preferred for
occupation performed in regional area.

This visa is for a qualified overseas person who wants to work in Australia on a temporary basis.
On the basis of employment and skill, Temporary skill shortage visa subclass 482 permits person
to work in Australia up to four years. It also permits person to travel from or to Australia within
this period. Along with this, this visa also provides permission to family members of overseas
person to work and study in Australia. The TSS visa is the temporary visa which permits the
occupier to live in Australia at the time of engagement in working whole time for the sponsoring
employer, in the nominated position. The visa is bifurcated in four streams Labor Agreement
Stream, Short term stream, Medium-term stream and Global talent scheme in accordance with
provision specified in regulation 2.27 i.e. ‘criteria for approval of nomination for subclass 457
visa and subclass 482 visa in following manner.
Short Term Stream: In specified category, applicant is allowed to have one temporary visa as
primary holder. It allows the visa holder to work on a position for two years or four years (in the
case of International Trade Obligation). However, visa in specified stream can be renewed only
once a while an employee is in Australia.
Medium-Term Stream: The specified stream is for those visa applicants whose employer are
listed on Medium and Long-term Strategic Skill List or Regional occupation list. An individual
can apply for specified visa unlimited times1.
Labour Agreement Stream: An employee can apply in the specified stream only in case
Australian employer is having labour agreement with department of affairs and offers
1 Chris F.Wright, and Stephen Clibborn. "Back door, side door, or front door: An emerging de-
factor low-skilled immigration policy in Australia." Comp. Lab. L. &Pol'y J. 39 (2017): 165.

sponsorship to the applicant. Further, in order to be eligible for specified criteria it is necessary to
have minimum experience of work of two years, nomination from approved sponsor, attaining
valid English language proficiency evidence, having functional valid visa, satisfies with
specified condition with health and character along with requirements relating to individual
stream.
The requirement for sponsoring employer
In accordance with Division 3A of Migration Act ; Division 3A, government of Australia has
entered into an agreement with Standard Business Sponsorship which permits the owner of
business to sponsor overseas people to work in significantly skilled businesses. These employers
are considered as ‘approved work sponsors’. It comprises overseas business sponsorships in case
overseas business is not represented in Australia could nominate individual with adequate skills
and appropriate experience for establishing business in Australia with overseas connection. After
the approval of this agreement it is active for 5 years and permits organization to nominate
overseas person for TSS visa. The primary requirement for this agreement is that business should
be run in a legal manner. Further, organizationshould not have any negative information
recorded in contrary to this. Several types of entity can apply for this agreement such as public
companies, partnership firms, sole traders, government and statutory department, and many
others2. Further, the size of business does not matter. However, financial viability is considered
by government at the time of entering into agreement. Along with above aspect, for obtaining
SBS it also consists of the identification of true ABN to apply under, recording of name of
business, and providing business activity statement as well as financial statement. Moreover,
2 Russell DLansbury, Anya Johnson, and Diane Van den Broek, eds. Contemporary Issues in Work and
Organisations: Actors and Institutions. Routledge, 2019.

they also show a promise to training citizen of Australia and PR (Permanent Resident) and
compliance with laws and regulations of Australia in relation to workplace.
The provision relating to occupation
In order to attain eligibility for application of 482 Visa, an individual requires to be of an
occupation which is stated or considered as ‘skilled occupation list’ which is now replaced by
medium to long term skilled occupation list and short term skilled occupation list. Thus, in
present case employer will be required to seek permission of standard business sponsorship
status. It is necessary that sponsor should be evolved in legal business operations in Australia.
Sponsor is also required to accomplish trading benchmark by specified fixed amount of
contribution to ‘Skilling Australia Fund’3. Even it will have to present that no contravention of
laws have been made and its proposed business will benefit Australia
After the application of SBS, it is required by the employer to propose a position within their
business, which would be filled by overseas citizen. However, for this there are several
requirements prescribed, which are as follows –
Labour market testing
In accordance with section 2.7244 of Migration regulations 1994, overseas citizen for a TSS
visa, it is required by business to establish that the labor market has been tested by them. In this
testing, it should also reveal that business futilely advertised for proposed position. As a portion
of application, proof should be presented by business. Generally, in most of the cases acceptable
requirement is that in the previous four-month at least two advertisements should be placed of a
3Paul Gregoire, "Union-busting laws will further repress right to strike." Green Left Weekly 1233 (2019): 10.

period of 28 days. On the other hand, government also provided that in some cases this
requirement is not mandatory and explains about requirement of alternative evidence. It is
advised to employer to pursue opinion of experts in order to ascertain whether labour market
testing is satisfied or not in accordance with provisions of section 140GBA of Migration Act
1994.
Salary Criteria for the proposed position
The government also prescribes some salary criteria for TSS visa. With this aspect, it is required
for business to satisfy two requirements, which are as follows –
 The salary must be more than the salary defined by the Temporary Skilled Migration
Income Threshold (TSMIT). This limit is prescribed by DIBP in every year. At present
this limit is $53900. Further, if the sponsor provides salary less than $ 250000, in such
case additional information should be provided revealing that salary is according to the
market salary rate.
 Further, the salary should be according to the market rate of position. The main objective
behind this criterion is to make sure that applicant will receive salary similar to
employees of Australia in equivalent position.
The requirement for applicant of visa
As per provision of Migration Act 1994, first and primary requirement for TSS visa is that
applicant must be nominated by sponsoring employer. The post that employer wishes to fill
should be reflected as a business on combined list of permitted skilled occupation. All
description such as position of applicant, education, and employment should be as per detailed
provided by government. Further, it is essential that applicant should possess adequate skill to

fulfil the position. However, requirement of skill differs in accordance with employment. Along
with this, visa applicant should have at least two-year experience relevant to the employment.
They possess education according to the highly skilled position for which they are proposed. At
the time of examination of TSS visa, skill and education of applicant for the nominated
employment may be cross verified by the government with the information supplied by
sponsoring employer with respect to the qualification and experience of work. Further, applicant
is also required to meet requirement of English language at the time of applying for TSS visa
application4. However, English language requirement is not applicable for applicant if he/she
belongs from exempted country such as USA, UK, Canada, NZ, and Ireland. Along with above
aspect, applicant should also satisfy the criteria of health as well as personality. Further, after the
completion of age of 16 years, police clearance certificate is required from each nation in which
applicant has resided for at least 12 months, in the past ten years. Regulation 2.61A of Migration
Regulation 1994 asserts that family members of primary applicant are considered as secondary
applicant and visa applicantis required to include same in original application as second
applicants. It is necessary for applicant of 482 visas to meet out specification relating to health
requirements. He would have to accomplish procedure as per legislative instrument. However, in
case applicant is not able to accomplish health requirements; waiver has been specified in
Schedule 4, 4006 A regarding sponsor providing undertaking to accomplish cost relevant to
nominee’s medical condition.
The provision relating to temporary entrant criterion
4 Birrell, Bob (2018). (accessed on 11th October 2019) Australia’s skilled migration program: scarce skills not
required. Monash University, VIC: The Australian Population Research Institute. available from <
https://tapri.org.au/wp-content/uploads/2016/04/Final-March-8-Australias-skilled-migration-program.pdf>.

In accordance with provision asserted in Migration Act 1994, the applicant of 482 visa is subject
to ‘genuine temporary entrant’ (GTE) which is framed to prevent visa-holders from remaining in
Australia excessively5. Thus, an applicant is considered to accomplish requirement of GTE
criteria unless:
 the applicant has held more than 2 short- term visa in the last five years.
 the applicant has been in Australia for continue 4 years.
Along with the above aspects, it is also required that applicant of visa should not have any close
or family connection with director or shareholders of sponsoring business. They also have
capability to transfer their knowledge and expertise to another employee of Australia6. All visa
applicants are capable of complying with the simple procedure of application. After the approval,
it is granted for four year period.
English language requirements and exemptions
In accordance with Regulation 5.17 of Division 5.3 of Migration Regulations 1994, all principal
applicants for a visa under Standard Business Sponsorship or Overseas Business Sponsorship to
have functional English for both initial as well as subsequent applications. It is necessary for
applicants to score 5.0 band score for all visa application with a minimum of 4.5 on any four test
components as per revised provision which was modified on 15th April 2015 (Migration
Regulations 1994). However, these provisions have been modified on 18th March 2018 in
following manner:
5 AnnaBoucher,. "Measuring migrant worker rights violations in practice: The example of temporary skilled visas
in Australia." Journal of Industrial Relations 61, no. 2 (2019): 277-301.
6 CourtneyBrell, and Christian Dustmann. "Immigration and Wage Growth: The Case of Australia." In Reserve
Bank of Australia Low Wage Conference, pp. 4-5. 2019.

Applicants for short-term stream applicants:
 For IELTS; overall band score of 5.0 as well as minimum 4.5 band score in each test
variant.
 For PTE, overall band score of 36 with minimum 30 in each test variant
 For CAE, overall band score of 154 with minimum 147 in each component (Migration
Act 1958).
Applicants for medium-term
 For IELTS, an overall band score of 5.0 with a minimum 5.0 band score in each test
variant.
 For OEY, the score of B in each test variant
 For PTE, overall band score of 36 with a minimum 36 in each test variant.
It can be accessed from the above provision that Athol Macaron will succeed in sponsoring visa
of employee-only in case his occupation is listed on skilled occupation list. Further, it would also
have to prove that legal business has been conducted and the services will provide benefit to
Australia. In present case if occupation of Athol is listed, then he will succeed in sponsoring visa
as legal activities are conducted by him and through providing employment to Dominic he would
be able to benefit Australia as he is graduated from Culinary Arts Academy in Switzerland and
has cooking experiences also. Thus, he would succeed in sponsoring visa. Further, as per
provision relating to nomination for employee, sponsor can include family members of principal
nominee, Athol will be able to sponsor visa of his family members also.
For visa requirement of Dominic, it could be accessed that as he has been working over the
number of years under celebrity chef Alain Bourdain in USA and also been awarded for his

skills. No issue will arise related to requirement of working experience as well as skills. Further,
he would require passing English language requirement as per short term or medium term as per
visa application provisions. He is also required to provide appropriate details of his family
members as they will be considered as secondary applicant. In order to increase the chances of
acceptance of visa application, the employer can (Athol) provide evidence relating to skills and
experience of Dominic and the manner same would provide benefits to the economy and culture
of Australia. It would be appropriate to state that Dominic would be eligible for visa in case
Athol Macaron is having approved business and nomination has been made under approved
occupation for skilled position. Through this eligibility he would be able to work in short-term
stream; medium-term stream and labour agreement stream.

REFERENCES
Legislation
Migration Act 1958
Migration Regulations 1994
Books and Journal
Birrell, Bob (2018). (accessed on 11th October 2019)Australia’s skilled migration program:
scarce skills not required. Monash University, VIC: The Australian Population Research
Institute. Available from < https://tapri.org.au/wp-content/uploads/2016/04/Final-March-8-
Australias-skilled-migration-program.pdf>.
Boucher, Anna. "Measuring migrant worker rights violations in practice: The example of
temporary skilled visas in Australia." Journal of Industrial Relations 61, no. 2 (2019): 277-
301.
Brell, Courtney, and Christian Dustmann. "Immigration and Wage Growth: The Case of
Australia." In Reserve Bank of Australia Low Wage Conference, pp. 4-5. 2019.
Gregoire, Paul. "Union-busting laws will further repress right to strike." Green Left Weekly 1233
(2019): 10.
Lansbury, Russell D., Anya Johnson, and Diane Van den Broek, eds. Contemporary Issues in
Work and Organisations: Actors and Institutions. Routledge, 2019.

Wright, Chris F., and Stephen Clibborn. "Back door, side door, or front door: An emerging de-
factor low-skilled immigration policy in Australia." Comp. Lab. L. &Pol'y J. 39 (2017): 165.