Temporary Work (Skilled) Visa (Subclass 457) Essay: Legal Requirements For Permanent Residence.

Overview of Temporary Work (Skilled) (Subclass 457) visa

QUESTION 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.

Prepare a letter of advice for Rodrigo Hernando, explaining in simple termswhat 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.

QUESTION 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 jobat 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’seconomic 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.

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 maybe interested in sponsoring him.

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.

Overview of Temporary Work (Skilled) (Subclass 457) visa

The Temporary Work (Skilled) visa (subclass 457) allowed workers who have skilled to work in Australia for the period of 4 years for a business which is approved. It is necessary that applicant of visa must be sponsored by business which is approved in Australia for this purpose, and approved business is able to sponsor a person for visa if it is not possible for them to find the person for skilled work in Australia. While lodging the application for Visa, an applicant can be in Australia or outside from Australia.

Visa allows applicant to work in Australia for the period of 4 years, to bring his family members in Australia for the purpose of work or study, and travel in and out of Australia.

Before applicant applies for the visa, it is necessary that an employer must applied for approval of sponsorship and nominate the worker for the position. Applicant can apply for the visa at the time when employer can lodge application for the purpose of sponsorship and nomination.

For the purpose of clearing the eligibility criteria of 457 visa from standard business sponsorship, occupation of the worker must be listed on the Consolidated Sponsored Occupations List (CSOL). Classification of occupation listed on CSOL is classified as per Australian and New Zealand Standard Classification of Occupations (ANZSCO).

It must be noted that application for this visa is not appropriate or allowed if it is not supported by the document of approved sponsorship. Following are some requirements which must be met by the visa applicant:

• Applicant must demonstrated minimum English language ability.
• Applicant must have skills and experience to perform the nominated occupation. For this purpose skill assessment is required.
• Applicant must have adequate insurance for health for the period he or she stays in Australia.
• Applicant must show the genuine intention to perform the nominated occupation.
• Applicant must met the standard visa requirements, for example- character assessment, health assessment, and the declaration that applicant follow the values and laws of Australia.

For the purpose of qualifying for standard business sponsor, it is necessary that employer show that he conduct lawful business in the Australia. An employer only has single standard business sponsorship, and this sponsorship is valid for the period of 5 years. All the businesses which are conducting in Australia for the period of less than 12 months cannot provide sponsorship, and these businesses are limited to a sponsorship approval period of 18 months. Employer can extend the period of sponsorship by lodging a variation application during this 5 year time period.

These requirements applied on all applicants such as individual or business. There is one exception to this rule that overseas standard business sponsors are not obliged with training requirements and attestation. It is necessary that business of the employer meet the following requirements for getting approval of sponsorship:

• Employer must apply for sponsorship in correct manner. In other words, employer must fulfilled correct form and pay the correct fee.
• Business of the employer must be lawful either operation in Australia or outside Australia.
• Employer must clearly state the number of positions he wish to nominate for the approved sponsorship.
• In case employer lawfully operating a business and traded for 12 months or more then it is necessary that he fulfill the regulation set for training.
• In case employer lawfully operating a business and traded for less than 12 months then it is necessary that he must set plan related to fulfill the regulation set for training.
• There must be direct relationship between employee and employer.
• Business must not depend on hire skilled workers unless occupation is exempted.
• Department must not have any adverse information related to the person have connection with the business.
• If sponsorship is approved then it is necessary that employer complied with all the obligations of the sponsor.
• Employer must show strong commitment for the purpose of employing local labor, and practices which are non-discriminatory in nature.

Applicant cannot apply for this visa if he already has a visa which includes condition of no further stay.

Nomination means when employer who become approved sponsor identifies a position for the purpose of filling it by an overseas skilled worker. Following are some requirements for nominating a person for identified position:

• Business conducted by employer must have genuine need for the nominated position in the business.
• Business must be of approved sponsor or person must apply for sponsorship.

Answer 2

Part a: section 245AR of the Migration Act 1958 states the prohibition on asking or receiving a benefit in return for providing sponsorship. Clause 1 of this section states that person contravenes this subsection if he asks or receives any benefit from another person, and if he asks or receive any benefit from another person for the purpose of occurrence of event related to sponsorship.

Eligibility Criteria for Temporary Work (Skilled) (Subclass 457) visa

Clause 2 of this section states that person is liable for the violation of subsection 1 even in case event related to sponsorship failed to occur.

Clause 3 states that if person receives any professional fees for providing the services and this fee are provided by another person, and then this cannot be considered as violation of subsection 1 of this section.

It must be noted burden to prove that section is not violated is on defendant for the purpose of this section.

Clause 4 of this section states that if any person violates subsection 1 of this section then it will be considered as an offence, and physical elements related to offence are stated in subsection 1. This section also states the penalty for the offence that is imprisonment for the period of two years, 360 penalty units, or both.

Clause 5 of this section states if any person contravenes subsection 1 of this section then it will considered as civil offence and subject to civil penalty that is 240 penalty units.

Clause 6 of this section states if any person wants to rely on subsection 3 during proceedings, then civil penalty also includes evidential burden for the purpose of this matter.

It must be noted that for the purpose of civil penalty order, there is no need to prove person state of mind in proceedings. For this purpose, section 486ZF is referred.

In the present case, Rodrigo asked $85000 in return for sponsorship provided for permanent visa from Marcos, and in this Rodrigo breach subsection 1 of section 245AR and it is considered as an offence which is subject to penalty stated in clause 4 and 5 of this section.

Part b: visa holder of Temporary Work (Skilled) (subclass 457) visa are obliged with the condition placed on visa which allowed them to work only for sponsored employer and in some particular situation employee can also work for an associated entity of an sponsor of Australia. it must be noted that it is necessary that visa holders commence their work within 90 days after he or she reached in Australia.

In case of cease of employment under sponsored employer, a holder of 457 visa can either depart from Australia or he can find another sponsor or get another visa for the purpose of staying in Australia within the period of 90 days from the date of ceasing of employment.

An employer can sponsor a worker who holds 457 visa, and it is necessary that application for nomination must be lodged before the end of 60 days or 90 days whichever period apply on individual under condition 8107. It is necessary that sponsor must notify their intention to immigration department because it may help them in avoiding action of visa cancelation.

Visa holder of subclass 457 can serve out the notice period to their previous sponsor employer even after the approval of new nomination. The immigration department of Australia continuously cancelling the visa of 457 visa holders who stay in Australia even after their permitted stay period is over, unless they have been nominated by another sponsor or they applied for another visa to stay in Australia.

It must be noted that before cancelling the subclass 457 visa of a person in Australia, the immigration department issue notice of Intention to Consider Cancellation to the visa holder on last known address to the immigration department.

In the present case, Marco can find new sponsor for him or he can apply for new visa t stay in Australia within 90 days of cease his employment.

Part c: The Regional Sponsored Migration Scheme visa (subclass 187) is the visa which facilitates the skilled workers to stay permanently in Australia. In other words, it is permanent visa for skilled workers who want to work in Australia.  This visa allowed the workers to work in three streams that is the Temporary Residence Transition stream, the Direct Entry stream, and the Agreement stream. Following are requirements of this visa which are stated below:

• An applicant can get this visa if he has been nominated by Australian employer who is approved, and worker must be less than 50 years of age.
• Worker must meet the skills, and requirements related to English language and qualification.
• Worker can only apply under that scheme in which he is nominated.

In the present case, Marcos can apply under Temporary Residence Transition stream because this stream is for the workers who hold 457 visa and worked for two years in Australia. a person can apply under this stream if he holds 457 visa and while holding this visa he work in same occupation with their nominating employer, and wants to offer permanent position in their workplace.

References:

Australian Government, 9.3.1.70 Visa Condition 8107, < https://guides.dss.gov.au/guide-social-security-law/9/3/1/70>.

DIBP, Regional Sponsored Migration Scheme Visa (Subclass 187) Applicant Document Checklist, < https://www.border.gov.au/Trav/Visa-1/187-/Regional-Sponsored-Migration-Scheme-visa-(subclass-187)-applicant-document-checklist>.

DIBP, Regional Sponsored Migration Scheme visa (subclass 187), < https://www.border.gov.au/Trav/Visa-1/187->.

DIPB, Fact Sheet - Temporary Work (Skilled) (subclass 457) visa, < https://www.border.gov.au/about/corporate/information/fact-sheets/48b-temporary-business-visa#c>.

DIPB, Temporary Work (Skilled) (subclass 457) visa, < https://www.border.gov.au/forms/Documents/1154.pdf>.

DIPB, Temporary Work (Skilled) visa (subclass 457), < https://www.border.gov.au/Trav/Visa-1/457->.

EY, Australia implements changes to 457 visa termination regulations, < https://taxinsights.ey.com/archive/archive-news/australia-implements-changes-to-457-visa-termination-regulations.aspx>.

Hall & Willcox. Guide for sponsoring skilled personnel to Australia – the 457 visa, (2015), < https://www.hallandwilcox.com.au/guide-for-sponsoring-skilled-personnel-to-australia-the-457-visa/>.

Live in victoria, Temporary Work (Skilled) Subclass 457 Visa, < https://www.liveinvictoria.vic.gov.au/employing-overseas-talent/visa-pathways/employer-sponsored-visas/temporary-work-skilled-subclass-457-visa#.WMzEZzuGPIU>.