LML6002 Australian Migration Law Case Study 2 Sample
Assignment Brief
1. Accurate answers to the questions demonstrating knowledge of statutory provisions, case law and applying problem solving skills.
2. Answers are justified by clear reference to the relevant facts, identify logical assumptions you have made about the facts in answering questions.
3. Arguments and information are clearly and logically presented.
SCENARIO
You are a registered migration agent.
Parvathi Singham, aged 38, comes to your office for some urgent advice. You ask Parvathi to produce her visa and she produces an Indian passport and you examine her visa grant notice. She holds a Class FA subclass 600 Visitor Visa with conditions: 8101, 8201, 8501 and 8503.
Parvathi also informs you that she is concerned that her visa may be cancelled under section 116 of the Migration Act 1958 as she has been working as a fruit picker at a fruit farm in Mildura. You notice that her visa has two weeks remaining. She informs you that she was previously employed as the head chef at a famous Hyatt hotel in Bombay, India, for the past 8 years. However, due to the break down of her relationship with her husband, she decided to escape to Australia.
She applied for a job at the Hyatt Hotel in Melbourne and they have agreed to sponsor her on a Class GK Temporary Skill Shortage Subclass 482 visa, as their head chef, Indian cuisine. The Hyatt’s current head chef’s health has deteriorated and he is unable to work and they urgently require someone with experience. They currently have their famous Indian restaurant booked out for the next 4 months.
QUESTIONS
Prepare a concise letter of advice to Parvathi and the Human Resources Manager at the Hyatt addressing the following issues:
(a) Can Parvathi make a valid application in Australia for a Class GK Temporary Skill Shortage Subclass 482 visa in the medium term stream?
(b) Are there any additional requirements that she would have to meet prior to making a valid visa application and in light of her circumstances, would she meet those requirements?
(c) Are there any risks in meeting these requirements?
(d) Would your answer to (a) be any different if her Visitor visa was cancelled under section 116 of the Migration Act 1958 prior to her making the application for a Class GK Temporary Skill Shortage Subclass 482 visa?
Your answers should be supported by reference to the relevant legislative provisions.
Solution
Question A
Under the Migration (Migration Agents Code of Conduct) Regulations 2021, a migration agent must be ethical and give proper advice on Australian immigration laws and procedures. In the case of Parvathi, she is on a subclass 600 visitor visa with Condition 8503, which is a "No Further Stay" restriction. This condition restricts her from applying for a further substantive visa while in Australia if she has not obtained a waiver—regulation 2. Part 05(4) of the Migration Regulations stipulates that a candidate may be relieved from Condition 8503 where there are soft and reasonable grounds that are realized after the visa was granted (Barnes et. al., 2023). Parvathi's new employment offer as head chef at the Hyatt Hotel Melbourne is urgently required and cannot be filled by any Australian who can probably fulfil this requirement.
When talking to Parvathi, a migration agent has to explain to her that although the business needs of the employer and the applicant's unique skills play a role, the contravention of Condition 8503 is discretionary. The agent should see it necessary to point out that enough substantiation must be given to show that the circumstances are indeed out of Parvathi's control and emerged only after the visa was granted. The need of the hour and Parvathi's prior experience in the field may make her case fall under compelling, yet there are no sure shots of success in such a case. If the waiver is granted, then Parvathi can apply for a Temporary Skill Shortage (TSS) subclass 482 visa while being in the country. The agent of Parvathi and her employer must consider sponsorship and nomination requirements and skills assessment, as well as other circumstances like health insurance (Condition 8501) and language proficiency (Ziersch et. al., 2021). It is a law known as Migration (Migration Agents Code of Conduct) Regulations 2021 that prescribes that a migration agent must act with integrity and not mislead his or her client, Parvathi in this case, hence having to explain to her the risks involved in a certain decision and the options open to her.
It can be said that Parvathi is presently a visa holder with conditions 8101, 8201, 8501 and 8503 under the class FA subclass 600 Visitor Visa. The content is from a medium-term position of Parvathi's current immigration status and her likely application for the TSS Subclass 482 visa. Condition 8503, as a "No Further Stay" condition, she can't apply most visas while she is in Australia, and condition 8101 prohibits her from working in Australia. The 8503 condition is central to this case for it largely prevents Parvathi from lodging an application for a visa over her stay in Australia like the TSS Subclass 482. However, as pointed out in Migration Regulations 1994, Regulation 2.05(4), the applicant may make an application for waiver of requirement 8503 if extraordinary and humanitarian circumstances arising therefrom unforeseeable at the time of visa grant have arisen. Parvathi may seek this need exempted based on her urgent position and the urgent need of Hyatt Hotel for a highly professional head chef for university assignment help. She would, then, have grounds for making a valid application for this Subclass 482 visa
Question B
Other additional requirements that Parvathi needs to fulfil include the following: So to lodge a valid application for a Class GK Temporary Skill Shortage (Subclass 482) visa, Parvathi must, among others: include meeting, skills and qualifications, and the English language requirements as provided in Schedule 2 of the Migration Regulation 1994. There are also nomination requirements that Hyatt, the employer, has to fulfil to ensure that the position cannot be filled by an Australian worker (Van den Broek et. al., 2021). Because Parvathi possesses adequate experience as head chef for a notable hotel, chances are high for her to satisfy the requirements of the skill and qualification demand of the subclass 482 visa. However, she must also ensure that she attaches enough documents that prove that she meets the required qualifications, experience, and professional skills in the culinary industry. This is necessary under the visa arrangement and will also assist in supporting the employer's nomination (Migration Regulations 2021, Schedule 2).
Also, she should make sure that her health insurance complies with Condition 8501. This condition entails that the visa holder needs to have acceptable health insurance while in Australia, which is a general standard for most of the temporary visas to Australia within the subclasses, including the 482. Noncompliance could have serious implications for her visa application since this was one of the conditions that she needed to meet. There is also the requirement of language proficiency, especially in English, since under the subclass 482 visa, Parvathi must showcase a pass in English (Aboodm et al., 2023). If Parvathi fails to achieve the required threshold for the English proficiency needed for the course, she may be forced to sit for an English language test in compliance with the Migration Regulations. It is under the Migration (Migration Agents Code of Conduct) Regulations 2021 that the migration agent must ensure that Parvathi understands these regulations and any risk that is involved in her visa process, advising, recommending, and other activities to be conducted professionally and ethically.
Parvathi is responsible for the eligible head chef position, and her specialty must be in Indian food if she is to be qualified for the Medium-Term Stream of the Subclass 482 visa. Parvathi succeeds in that by falling within the MLTSSL. Parvathi obviously meets the criteria of experience and skill under the 482 visa as she has more than 8 years of work experience as head chef in a reputable hotel in Bombay. She will need to provide documentary evidence of qualifications, experience, and a skills assessment if required. Her employer, the Hyatt Hotel in Melbourne, needs to be a recognized Standard Business Sponsor. To demonstrate that she is seriously required for this critical role, they should make her nomination as head chef. Obviously, Parvathi must meet the health and character requirement for the visa application purpose and also have current health insurance policy complying with Conditions 8501 and relevant legislation. She will need to lodge all the required documents and undergo all the required medical checks.
Question C
Parvathi encounters several clear risks in the process of applying for the necessary waiver for Condition 8503 as well as in satisfying the visa requisites of the Class GK Temporary Skill Shortage (TSS) subclass 482 visa. The waiver request is subjective; thus, the Department of Home Affairs has the power to decline the request if it does not consider Parvathi's situation worthy enough. This points to the allure that she needs to put forward a very well-documented case as to why she needs the visa now more than ever and this points to the Hyatt employment offer she has where staffing is critical. Another risk factor is the timing About this, several factors usually comprise risks by the timing of the Programme. Parvathi has seen that she can apply for a waiver and then the visa within two weeks before the expiry of her Visitor Visa (Boese, and Moran, 2021). Failure to meet these deadlines may lead her to be an unlawful non-citizen and the implications for her residential status in Australia as well as for her application for any future visa will be dire. Based on her case, she must ensure that all required documents are produced early enough to avoid delay.
Also, Parvathi needs to prove English language proficiency which has been set as mandatory for applying for the subclass 482 visa. This may make her sit for an English language proficiency test depending on her education level and country of origin. Even if she was to fail to attain the required level of proficiency, her visa application would simply be rejected adding more problems to her issues (Clark-Kazak, 2021). The Migration Agents Code of Conduct allows migration agents to provide accurate information about risks and obligations in their client's best interest (6002-6). Therefore, Parvathi must be aware of these possible challenges, to the extent of overload knowledge. The acknowledgement and proper management of the former will be significant for her transition from her current Visitor Visa to the subclass 482 visa to maintain hold of her position at the Hyatt and progress her career in Australia.
Minimal requirements are also provided. Risks of Waiver under Condition 8503 are not assured. The Department of Home Affairs may deny the waiver of Parvathi if her circumstances are not considered compelling and compassionate. She will not be able to apply for a Subclass 482 visa in Australia. Nevertheless, her urgent need to cover up the head chef position may help her case. Employment by Parvathi as an unauthorized fruit picker pursuant to Condition 8101 of her Visitor Visa. Section 116 of the Migration Act of 1958 provides that this gives rise to the cancellation of a visa. If her visa were to be cancelled then she may not get the opportunity to re-apply, and could even face a three year ban from entering the country under Section 48 of the Migration Act
Question D
As mentioned earlier, if Parvathi's visa is cancelled under the Migration Act 2021 for working illegitimately she will be in no position to apply for a new Class GK Temporary Skill Shortage Subclass 482 visa. Under section 48 of the Migration Act, such a cancellation restricts her from applying for most other visas while in Australia except for the subclass 482 visa. Thus, Parvathi would be forced to depart for Australia and complete her application from overseas; there would always be a possibility of facing lots of complications and not knowing what her future holds in this country. Moreover, the cancellation of the visa would have consequences towards her record of migration and as such may occasion difficulties anytime she is going to apply for yet another visa; this may even compel her to encounter a harder time from the Department of Home Affairs (Hakak, et. al., 2022). This may have the potential to have a bad impact on her credibility when presenting subsequent applications, especially where the record of such work is perceived to have been done in violation of visa rules. This could attract a bad reputation which may in one way or another influence her possibility of obtaining any future visas.
Given all these risks, it becomes very important for Parvathi to deal with her case of working without a permit as soon as possible. She should consult a legal professional to find out whether there are ways in which she could minimise the risk of cancellation of the visa, and whether or not there are any grounds that would be available to her for defending such a cancellation. It is also necessary to prevent her immigration issues and avoid non-compliance with the law of the country. According to the Migration (Migration Agents Code of Conduct) Regulations 2021, the migration agents must exercise professional and ethical conduct to inform clients of the likely undesirable outcomes that may be incurred from a particular course of action (Walton-Roberts, and Bourgeault, 2024). Hence, Parvathi needs to know or be informed of the consequences that come with her current status, not forgetting the need to have her immigration status fixed as soon as possible to avert any indecent outcome. Following these standards, migration agents are capable of working in the best interest of their consumers and at the same time maintaining professional and legal criteria.
In this case, since Parvathi's Visitor Visa was cancelled under Section 116 of the Migration Act 1958, she would not be able to apply for a Subclass 482 visa in Australia, because the applicant is barred from applying for certain visas by Section 48, if his previous visa was cancelled while the applicant was in Australia. On top of that, she would be banned from re-entry to Australia for up to three years. Parvathi should take action now and quit her job to seek an immediate legal opinion on her status of her visa in order to prevent this from happening. She should apply as soon as possible to have the 8503 requirement waived.
References
Abood, J., Green, J., Polonsky, M. J., Woodward, K., Tadjoeddin, Z., and Renzaho, A. M. (2023). The importance of information acquisition to settlement services literacy for humanitarian migrants in Australia. Plos one, 18(1), e0280041. https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0280041&type=printable
Barnes, J., Naser, M. M., and Aston, J. (2023). A vulnerability approach to irregular migration and modern slavery in Australia. Australian Journal of Human Rights, 29(1), 121-140. https://www.tandfonline.com/doi/pdf/10.1080/1323238X.2023.2229619
Boese, M., and Moran, A. (2021). The regional migration-development nexus in Australia: what migration? Whose development?. Frontiers in sociology, 6, 602487. https://www.frontiersin.org/articles/10.3389/fsoc.2021.602487/pdf
Clark-Kazak, C. (2021). Ethics in forced migration research: Taking stock and potential ways forward. Journal on Migration and Human Security, 9(3), 125-138. https://journals.sagepub.com/doi/pdf/10.1177/23315024211034401
Hakak, Y., Bosah, S., Amponsah, K., and Cheung, K. L. (2022). Social workers migrating between England and Australia: Linking social hierarchies, bureaucracy, trust and politeness. The British Journal of Social Work, 52(6), 3095-3113. https://academic.oup.com/bjsw/article-pdf/52/6/3095/45892534/bcab204.pdf
Van den Broek, D., Wright, C. F., Howe, J., and Reilly, A. (2021). Pro-market governance, migration status and worker vulnerability: The case of Australian horticulture. Economic and Industrial Democracy, 42(4), 1305-1325. https://www.researchgate.net/profile/Chris-Wright/publication/334744264_Pro-market_governance_migration_status_and_worker_vulnerability_The_case_of_Australian_horticulture/links/5e
1bc1ef92851c8364c8dc73/Pro-market-governance-migration-status-and-worker-vulnerability-The-case-of-Australian-horticulture.pdf
Walton-Roberts, M., and Bourgeault, I. L. (2024). Health workforce data needed to minimize inequities associated with health-worker migration. Bulletin of the World Health Organization, 102(2), 117. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10835628/
Ziersch, A., Walsh, M., Due, C., and Reilly, A. (2021). Temporary refugee and migration visas in Australia: an occupational health and safety hazard. International Journal of Health Services, 51(4), 531-544. https://www.researchgate.net/profile/Moira-
Walsh/publication/348875895_Temporary_Refugee_and_Migration_Visas_in_Australia_An_Occupational_Health
_and_Safety_Hazard/links/60344d08a6fdcc37a84630bc/Temporary-Refugee-and-Migration-Visas-in-Australia-An-Occupational-Health-and-Safety-Hazard.pdf
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