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Australia Visa System

1.

Marcos de Cunha is a Portuguese chef who has worked at the Michelin star Restaurant du Madeira in Lisbon for about ten years. Marcos is now aged 36, married with 2 sons, aged 10 and 6. Marcos’ wife Carmen works as a kindergarten teacher in Lisbon.

During a trip to Australia to attend the annual Melbourne Food and Wine Festival, Marcos happened to meet up with Rodrigo Hernando, owner of Hernando’s Hideaway Restaurant in Melbourne. Rodrigo told Marcos that he is looking for a chef for his expanding business at the Crown Casino complex and asked whether Marcos may be interested to work for him on a temporary working visa. At first Marcos was hesitant as he would have preferred the offer of a permanent job, but Rodrigo assures Marcos that after a couple of years, if he is as good as the Michelin people say he is, there will be opportunities for permanent employment and at an offer of $85,000 per year, it does not take long for Marcos to accept the offer.

After Marcos returned to Lisbon to prepare for his move to Australia, Rodrigo comes to see you. You have just attained your registration as migration agent. Rodrigo informs you that he has not previously sponsored anyone on a working visa and had, in the main, relied on employing students doing cookery courses in Australia to work part-time. But, as his restaurant business is expanding, he thought he should employ a good chef on a full-time basis. Rodrigo asks what are the requirements if he wishes to sponsor Marcos on a Temporary Work (Skilled) (subclass 457) visa to work in his restaurant. Rodrigo also asks if Marcos’ family can be included in the visa application.

Prepare a letter of advice for Rodrigo Hernando, explaining in simple terms what needs to be done by him and by Marcos (and his family) to meet the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa.

Your answer must be supported by reference to specific provisions in the legislation.

2.

Marcos de Cunha eventually succeeded in obtaining a Temporary Work (Skilled) (subclass 457) visa for himself and his family and they arrived in Melbourne where Marcos commenced working for Rodrigo Hernando at his restaurant. Marcos’ two children were enrolled in Melbourne Grammar and his wife Carmen soon found a job at a local kindergarten.

Everything went well until Marcos’ Temporary Work (Skilled) (subclass 457) visa was about to expire. As permanent residence had always been his intention, he asked Rodrigo to sponsor him for a permanent visa. By this time, President Trump’s economic measures of ‘America First’ had started to affect international trade and Australia was also starting to feel the downturn effect with a noticeable decline in tourism. As a result the Hernando’s Hideaway Restaurant was also starting to feel the pinch. In order to get more funds to finance the restaurant’s cash flow, Rodrigo offered to sponsor Marcos for a permanent visa if Marcos would pay him $85,000 in exchange for the sponsorship. After all, said Rodrigo, it means Marcos would need to forego only one year’s salary in return for the most generous offer of permanent residence.

  1. If Rodrigo and Marcos agreed to this arrangement, whereby Marcos would pay Rodrigo $85,000 in return for sponsorship for a permanent visa, have either of them committed any breach of the migration legislation? And are there any penalties for such breaches?

Following some consideration and especially after his wife Carmen informs him he must not do anything silly, Marcos finally declines Rodrigo’s proposal and decides to quit what Carmen describes as a business run by a ‘most dishonest and fraudulent person’. At this point, Marcos still has a couple of months left on his Temporary Work (Skilled) (subclass 457) visa. But as permanent residence has always been his intention, he has not given up on the thought of finding another restaurant who may be interested in sponsoring him.

  1. In this instance would Marcos be expected to depart Australia? If he left his employment prematurely, is he permitted a certain period of time to seek alternate employment?

Because of his Michelin standing, Marcos was signed up relatively quickly by Pedro Stefano, who runs a top-grade restaurant in Mildura. They soon reached an agreement where Pedro would sponsor Marcos for a permanent (Regional Sponsored Migration Scheme) (subclass 187) visa. Marcos comes to your office and asks what is a (Regional Sponsored Migration Scheme) (subclass 187), and the requirements and procedures for him to apply for the visa.

  1. Advise Marcos as to the requirements for the Regional Sponsored Migration Scheme (subclass 187) visa in relation to his situation.

Sample Answer

1.
Mr. Rodrigo Hernando, I am glad that you took your time to inquire about the temporary work visa (Subclass 457). As you had informed me earlier, you are the employer who is ready to sponsor one Mr. Marcos and his family on a temporary work visa and there on sponsoring them for a permanent visa. In this case, I would like to inform you that there is a set criterion that both parties should meet before their request can be granted1.

As an Australian citizen and the employer, one of the requirements that are necessary is that of following the right application procedure2. It is important to ensure that that one can collect, fill and pay the required fee to make sure that the same is processed. The failure to undertake this step will warranty that processing of the same will not be initiated thus the inability to attain the visa. The other important factor that should be considered while applying for the visa is ensuring that the business taking place is legitimate and in agreement with Australian laws3. There are some activities that are outlawed by the Australian laws and engaging in such a business will ensure that the visa will not be granted. The company must also make sure it pays taxes per the Australian legislation for it to be termed as legitimate4. The business in consideration here must also have been in operation for a minimum of 12 months. However, if the business fails to meet this criterion, it is crucial to ensure that there is an auditable plan in place which should be able to meet the prescribed training benchmark.

Eligible sponsors must also attest in writing their commitment to ensuring that their workplace does not condone discrimination of any level5. This move ensures that all those employed at the institution do not face any discrimination at their workplace. There are also some obligations that all eligible sponsors must be willing to abide by to ensure that they are allowed to sponsor eligible employees on a Sub- class 457 employment visa6. Working with inspectors is a requirement since this ensures that the business can meet the minimum set guidelines. The sponsor must also be ready to pay their sponsored employee, and their family members travel costs that may enable them to leave Australia within thirty days since the request is made7.
The sponsored employee must also be able to attain the minimum set guidelines. It is important first to acknowledge the fact that the visa was put in place to ensure that skilled workers who were not available in the country would be able to move in and practice. Therefore, the employee who is willing to apply for the visa must possess the required skills. Therefore, in this case, Marcos should showcase that he has the needed culinary skills that will enable him to perform his duties. Marcos also, cannot apply for the position if you as an employer has committed yourself to sponsoring him. The visa applicant must also be able to ensure that they have a working health insurance8. This ensures that they do not face any challenge when it comes to health issues while in Australia. In case, the applicant’s profession is governed by a body of professionals it is required that it must approve them.

The candidate must also possess English language skills that will be essential for their communication. This is proved by the applicant passing some of the basic language skills examination that is presented to them. If the applicant can meet the requirements, the family unit members can also be allowed to apply for the temporary visa9.

Attaining the Visa is not a complicated process when one meets all the set requirements. The 457 visa applicants can attain new employees without the need to undergo through the visa application process again. In case, the employment contract expires before the visa expires, the applicant is required to leave the country within 28 days10.  However, there is need to ensure that they get a new employer within 90 days since the day of quitting the job.

I wish you all the best and hope to work with you in case you initiate the process.

2.
1. It must be understood that under the Australian Migration laws it is a crime for any payment in return of a permanent visa to be made11. In this case, Both Rodrigo and Marcos would be breaching the migration law if Marcos had agreed to forgo his $85,000 salary. This is because by sacrificing the salary would have amounted to the payment of some money in return for the sponsorship favor that would be received. The Migration Amendment Bill 2015 makes it a punishable offense, to receive, give or offer to make any payments to receive permanent visa sponsorship
In this case, Rodrigo would be risking a two-year prison term or fines of up to $43, 200. One of the primary objectives of the bill was to ensure that employers would not exploit their employees. In this case, one can quickly point out that Rodrigo was trying to benefit by requesting Marcos to forgo his one year’s salary for work done. By allowing employers to ask their employees for payment to receive sponsorship favors, the same would work to undermine the progress that has been achieved by the Australian pay and Conditions13. This would also highly affect the credibility of the Australian migration program which aims that only residents of the highest integrity would be given permanent resident visas.

Marcos would also be risking having his residence revoked and forced to go back to Portugal. The law grants powers to the migration department to revoke Permanent visas given as a result of such a situation. Therefore, Marcos risks losing his permanent visa and a year’s worth of salary if he agrees to go on with the plan.

2. In a situation like this, Marcos needs to ensure that he takes several steps to ensure that he does not jeopardize his chances of getting a permanent visa as he wishes in future. One of the steps that he must take is ensuring that he informs the migration department of his situation within ten days from the day he quits his job. In return, the migration department will give him a period of 90 days, in which he should find a new employer who is ready to sponsor him, apply for another visa which he may qualify or rather leave Australia14. Because leaving Australia is not an option for Marcos he must ensure that he gets a new employer who us ready to sponsor him. However, he needs to understand that after getting a new employer he must undertake the process of acquiring a Temporary Work (Skilled) (Subclass 457) again. The employer must be willing to sponsor Marcos for the visa and must also showcase that their business is legitimate and needs his services. This move will increase the chances of Marcos of getting a Permanent Resident Visa in future.

3. Marcos situation allows him to apply for a Regional Sponsored Permanent resident (Sub- class 187) visa15. This Visa is given to foreign employees who are high skilled in their areas of expertise to operate in some of the low populated regions of Australia. In this case, Marcos needs to understand the necessary process required to attain the visa and be a permanent resident of Australia. The Subclass 187 visa has three streams, and Marcos qualifies for the temporary residence transition stream. This is because he had worked for two years in the same occupation while holding the sub class 457 visa.

One of the first steps that one needs to ensure that they pass is getting approval from the regional certification board. The second phase that is important for this nomination is having an approved Australian employer nominate the potential applicant for the visa before they can now begin the application procedure.

To qualify for the visa, he also needs to ensure that he meets some qualifications that have been put in place 16. One of the requirements that he needs to have met is that of having is nomination approved in less than six months of applying for the visa. In case the approval fails to happen within the timeline then one is automatically disqualified from getting the visa. The applicant should also be below the age of 50. However, with some exemptions, one can still be allowed to apply for the visa even above the age.  Since the visa is based on ensuring that the country receives skilled workers, the regional permanent (Sub- class 187) applicants must also be ready to showcase their skills. The skills should be about the positions at their place of work. In cases, whereby the profession is governed by a professional body, the employee must also be able to present their license of practice for their approval.

Marcos should also show his ability to communicate in English language skills as required by the temporary transition stream which he ought to have applied through. The applicant’s family must also meet some of the health and character requirements that have been set for the visa application to go through18. If Marcos can meet all these requirements, then his dream of becoming a permanent Australian resident will be achieved. To ensure that this process goes through in a faster and sound manner, Marcos can employ the services of a qualified migration agent who will help with the process.

Bibliography
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International Labour Law Reports, Editors, "AUSTRALIA" (2001) 22 International Labour Law Reports Online

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