INTRODUCTION
There are times that a country is faced with a short in skilled human resource. This shortage has been the leading causal factor in increasing the number of expatriates. However, this is for s temporary basis.[1]Although there is the need to allow skilled foreigner into Australia to help curb the shortage of skilled labour, it is essential that this is done through the implementation of correct laws and the creation of policies that provide for a useful framework that the government can monitor the admission of skilled foreign foreigners.[2] Jacob Hassan possesses impeccable skills in the world of engineering and would like to realize his hydrogen fuel for cars ambition. However, due to the strained relationship between Britain and other European countries following the Brexit exit, Jacob approaches David Meyer an Australian Businessman to help him get to Australia in order to achieve his dream. This letter seeks to advise the parties on the various ways that would enable Jacob Hassan to get a visa to Australia so as to work on his cut-edge project.
Legal Framework
The Rules, Policies, and Laws
According to the Immigration Act 1958 section 30 states the types of visas that one can apply for when seeking to visit Australia. Subsection 2 allows for one to apply for a visa that enables them to visit Australia on a temporary basis with the aim of carrying out an activity or until the end of an event. This is the subsection that allows applying for a visa in order to carry out a business venture.[3]
Section 41 of the Immigration Act allows the government to restrict the kind of activity that the holder of the visa is to undertake depending on the class of the visa. For instance, if Jacob Hassan would like to achieve his dream of creating a new form of energy he should apply for the visa class that enables him to work in Australia. However, Jacobs’s application must meet conditions set out under the Temporary Skilled Subclass 482 Visa.[4]It could be difficult for an employer to find a skilled Australian citizen to help him execute the mandate of his company; thus, the creation of the TSSV. The TSS Visa serves will enable Innovative Technology and Engineering to employ Jacob Hassan who has a vast knowledge in engineering that may help grow the Australian economy. However, it is essential to note that priority is given to Australian workers. Most of the times, TSS Visa leads to permanent residency.[5]
Jacob’s Eligibility Medium Temporary Skilled Subclass 482 Visa
This visa will grant Jacob the liberty to stay, work, and study in Australia. The validity will enable you to travel to and from Australia at any given time. Through Medium TSS visa ones stay in Australia is only limited to four years.[6]
Since most employers would appreciate the input of a skilled worker, this visa allows for sponsors to recruit competent non-Australian citizens subject to the requirements set out under the occupations list and that the relevant individual has at least two years’ experience in the said field. The TSS visa outlines requirements that have to be met for one to qualify as a skilled foreign worker in Australia. These requirements include:
- The worker’s occupation must be listed under the Medium and Long-term Strategic Skills List. Jacob Hassan being a petroleum engineer, he matches the descriptions of the jobs listed according to the Medium and Long-Term Strategic Skills List (MLTSSL). This is a list which comprises of occupations that allow one to apply for a medium-term TSS that last for four years and may be enhanced to permanency.[7]
- The applicant must be able to undertake the IELTS 5 test and score no less than 5. This to verify that the applicant can speak fluent English at all times as this is the official and popular language in Australia. However, there are exemptions to this requirement as will be discussed.[8] Jacob, despite being of Iraqi descent he has managed to gain the citizenship of Britain making him a British citizen. Jacob has lived in Britain since 2007, meaning that he is now fully able to speak English with high proficiency as he has worked and held prestigious positions as an engineer working for Jaguar. Therefore, Jacob is exempted from the English proficiency test as dictated by the TSS 482.
- The applicant must have at least two years of experience in the area of speciality. Hassan started working with Jaguar since 2015. The four-year experience satisfies the minimum requirement of 2 years of working experience according to the MLTSSL visa requirements. Moreover, the work experience falls within the five-year gap needed when calculating the age experience, according to TSS 482. It is mandated by law that once Jacob has acquired his visa, his work should be within the job he was nominated for as that is the reason for the visa granted failure to which he will be held liable for the breach of the Migration Amendment (Reform of Employer Sanctions) Act 2013.[9]
Whether Jacob is Eligible for Global Temporary Visa Australia?
This is an Australian government program launched on 1 July 2018. This program just like the TSS visa serves to invite brilliant business minds to come and work in Australia. Jacob Hassan could for this scheme and audition his talent. Sic Jacob Hassan’s idea-based fuel for cars is unique he stands a better chance of qualifying for the start upstream. Through this Innovation Technology and Engineering as an accredited sponsor may employ Jacob for his cutting-edge skills in petroleum engineering. This must be done in line with the TSS 482 visa. Hassan’s idea is alien to many and falls under Science Technology, Engineering and Mathematics (STEM) category which is a basic requirement for Jacob to be granted a Global Temporary Visa Australia.[10]
Whether David Meyer Can Sponsor Jacob Hassan through ITE?
Recruitment of skilled labour remains one of the most fundamental and challenging tasks that an employer could ever face. David Myer is defined as a local businessman and the head of ITE based in East Melbourne, Australia. David has shown a clear interest in the ideas propagated by Jacob and as promised to help sponsor him to Australia so Jacob could realize his project. However, for David to be successful in his intentions, he needs to observe the requirements set out by TSS 482. Australia allows for the movement of skilled workers from one state to the other according to the World Trade Organization General Agreement on Trade in Services 1994 (WTO GATS)[11]
- David Meyer owns a company related to Innovative Technology and Engineering (ITE). It is mandatory that ITE gets the nod as an approved business sponsor. Since ITE is based in Australia, most of its business is carried out within Australia thus it could be termed as a standard business. After the approval of the sponsorship by the department of home affairs, a nomination has to be put up matching the qualifications of Jacob Hassan. The nomination of the position you would like to be filled by the 482 visas. The occupation you would like to be filled must fall under the recommended categories such as the Medium and Long-Term Strategic Skills List (MLTSSL).[12]
- ITE must ensure that before seeking the expertise of a Jacob Hassan, a local resident and citizen must have been sought without success. It is highly recommended that ITE carry out Labour Market Testing unless it is dictated otherwise by International Trade Obligation.[13] If Jacob was a citizen of Canada or New Zealand then ITE would have enjoyed the exemption of LMT. It is required that ITE must show the Department of Home Affairs that Jacob Hassan is the best fit for the job description and no Australian can fill up the position. To meet this requirement, ITE most run an advertisement on the government’s website and one of the leading job websites. The advertisement should run for 28 days. On the expiry of the 28 days, you only have four months to put up a nomination for the important position you would like filled.[14]
- Once the nomination is done, David should inform Jacob to fill in the application form since he meets the standards necessary for one to be work on a Medium Long-Term Skilled Subclass. The nominated position must be full time, and genuine. If Jacob Hassan is successful for the nomination and it appointed it a dictate of the law that he works strictly according to the job description that granted him the TSS 482 Visa failure to which both ITE and Jacob Hassan shall be deemed to have breached the terms of the visa under Migration Amendment (Reform of Employer Sanctions) Act 2013.
- the payment of Nomination Contribution Training must be done depending on the turnover of your business. If your business has a turnover of more or less than $10 Million annually, you are to pay a fee of $1,800 and $1,200 per year, respectively. [15]
- ITE must adhere to the primary and minimum requirements when it comes to paying Jacob as the government strives to ensure that foreigners are not exploited when it comes to getting paid cheap wages while working for extra hours.[16] The government of Australia through the Fair Work Act of 2009 recommends that Jacob Hassan be at a rate that is similar to that of Australian citizens and residents. The government has gone ahead to instruct that the foreigners be paid just as Australian citizens and permanent residents are paid. Every employer is encouraged to pay the foreign workers a minimum of AUD 250,000 per year. Similarly, if there exist no comparable rates for which Jacob Hassan may be paid, ITE may rely on to pay the worker, the employer is at liberty to consult other instruments such as modern employment awards that may help in giving an estimate of what he ought to be paid to the worker.
- It is a requirement the ITE be able to pay the Nomination Contribution Training according to the annual turnover. If your business has a turnover of more or less than $10 Million annually, you are to pay a fee of $1,800 and $1,200 per year, respectively.
Conclusion
Since the
introduction of the TSS visa 482 as an improvement of 457 Visa, a comprehensive framework based on the law, regulations,
and policies that have made it easier to sponsor skilled foreign workers to
come and work in Australia to build the economy. Jacob Hassan has two options
for which he could freely pick from so as to facilitate his travel to Australia
to work on his project. Firstly, Jacob Hassan could apply for the Temporary
Skilled Shortage 482 visa, which will grant him a period of four years to work
on his project and can be enhanced to permanency after three years. Also, Jacob
could explore the Global Talent Visa option which is STEM-oriented; that is, fits
which his career as he is a fully-fledged engineer. The Global Temporary Visa
sets up an avenue where Jacob Hassan would showcase his unique ideas so as to
secure the sponsorship of an innovative company. Moreover, David Meyer through
Innovation Technology and Engineering could sponsor Jacob Hassan by following
the processes stipulated in the Temporary
Skilled Subclass 482 Visa. This involves the nomination of Jacob to fill
the position that describes his qualification. Also, ITE may take part in theGlobal Temporary Visa and select Jacob
Hassan as a beneficiary of their sponsorship program.
Bibliography
Books/ Articles
Cañas, Kathryn A and Harris Sondak, Opportunities And Challenges Of Workplace Diversity (Pearson, 2014)
Hawthorne, Lesleyanne, “A Comparison Of Skilled Migration Policy: Australia, Canada And New Zealand” [2014] SSRN Electronic Journal
Others
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) Act2013
The Global Talent Scheme (2018)
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
[1]Kathryn A Canas and Harris Sondak, Opportunities And Challenges of Workplace Diversity (Perason, 2014)
[2]Lesleyanne Hawthorne, “A Comparison Of Skilled Migration Policy: Australia, Canada And New Zealand” [2014] SSRN Electronic Journal.
[3]Immigration Act 1958 s30
[4]Migration Amendment (New Skilled Regional Visas) Regulations 2019
[5]Ibid
[6]Repealed Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
[7] Regulation 1.03 of Migration Regulations 1994
[8]See explanatory on Migration Act 1958 and Migration Agents Regulation 1998
[9] Migration Amendment (Reform of Employer Sanctions) Act2013
[10] See; The Global Talent Scheme (2018) Retrieved from
[11] World Trade Organization General Agreement on Trade in Services 1994
[12]Ibid
[13] 1840GBA(2) Migration Act 1958, read with s44 of the Legislative Act of 2003 and the Migrations Amendment (Temporary Sponsored Visas) Act 2013
[14] s11F of Code for the Tendering and Performance of Building Work 2016(Code)
[15] Migration Amendment Act (Skilling Australians Fund) Bill 2017 and Migration (Skilling Australians Funds) Charges Bill 2017)
[16] Fair Work Act of 2009
