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Subclass 457 Visa and English Proficiency Requirements

Describe about the Migration Law of Australia for Migration Regulation 1994.

a. According to subclass 457 of Migration Regulation 1994, it is necessary that a person should have proper knowledge of English and for that before getting the subclass 457 visa as per context David has to qualify English language testing to prove his eligibility to work in Australia[1].

For qualifying the English test some of the points are needed to be fulfilled. They are:

IELTS (International English Language Testing System) - In this test minimum score of per band should be 4.5 and overall score should be 5.

OET (Occupational English Test) – This test is especially for the health professionals and it is necessary that, four components of OET is needed to be fulfilled and they should be A “B” pass. This is made especially for the medical professionals.

TOEFL IBT: Total score of this test should be 36.

PTE (Person Test of English (Academic): Average score 30 should be gathered by the applicant in this test.

CAE (Cambridge English: Advanced): Total score should be 157 and minimum score should be 147 in this band.

As per schedule 1 of migration regulation 1994 subparagraph 2.72 (10) (g) (i), competency in concessional English is necessary which David is needed to qualify during English Language Test. According to subparagraph 2.72 (10) (g) (ii), it is important that a holder should hold license for nomination of occupation and under the language test specified marks should be obtained by the holder (David). The legislative instruments and period is mentioned in the subparagraph 2.72 (10) (g) (iii). The language tests criteria and the marks distribution is stated by subparagraph 2.72 (10) (g) (iv) [2].

As per Subject B, immi 15/028, there are certain criteria of obtained marks which will only allow the holder (David) to get subclass 457 visas and opportunity to work in Australia[3].

There are some exemptions:

As per English Language Skills Threshold (ELSET) for direct entry the applicant has to pay $ 96,400 [4].

If the applicant is passport holder of USA, UK, Ireland, Newzealand or Canada then exemption lies and he can get direct entry.

If secondary or tertiary education has been completed by the application at least 5 years from English medium then exemption lies in this case.

b. Migration regulation 1994, Subclass 457 states that on the part of the employer there are certain requirements which are required to be fulfilled, for the successful application for a worker to be employed in Australia [5]. Employer’s approval as a sponsor, functioning, an Australian business that operates within Australia or an overseas business, set with the intention to employ overseas employees, intended for setting up a company within the country are some of those requirements. This legislation also makes it obligatory on the part of employer to not have any undesirable records linked with the business or the any employees, employed in the business. Incorporating and accepting on the part of the employer non-discriminatory employment operation and dedication towards employing local labors are some of the other mentionable requirements of the employer.  It has also been mentioned in the Subsection 457 that on the part of the employer it is desired to demonstrate commitment in terms of fulfilling the requirements of Australia with the help of providing Australian workers with training.

In the context of the provided scenario it can be noticed that Jimmy Tran was the owner of a business in Melbourne, moreover, the provided facts do not indicate any negative records against him, brings down the conclusion that if the employer would have entered the contract, the requirements of Migration Act 1958 [amended 2014] Subsection 457 would not be breached. On the part of the employee as well, the act makes it obligatory to attain sponsorship by an eligible employer, have desired qualifications and skills in accordance to the offered position, have required eligibility for getting licenses needed for the offered position, and exhibit English language proficiency. In the context of the provided scenario, it can be observed that though an eligible sponsor, sponsored him but he was lacking language proficiency. This would result in breaching terms of Migration Act 1958 [amended 2014] Subsection 457, if he would go ahead with the agreement. The methods of sponsorship are mentioned in Migration Act 1994 of Sub regulation 2.61 (3A) [6]. It is also mentionable here that, the sponsor cannot ask for any other fee as per his own wish otherwise it will be a crime which can be seen to be present in this case, which would also result in breaching terms of Migration Act 1958 [amended 2014] Subsection 457, if the agreement is being proceeded. Breaching the act on the part of employer would result him in facing civil penalty that includes 60 penalty units and pecuniary penalty for breaching obligation of the sponsor. Under Schedule 3 of subclass 457 maximum $6,600 and $33000 has to be given by the sponsor of the visa applicant to the Australian court following the orders of government.

C. On the basis of the facts provided for the given scenario it can be observed that Ada is eligible for skilled occupation in Australia, and so she will be able to apply for skilled visa. There are certain requirements under the requirements of skilled visa there are certain criteria that are required to be fulfilled on her part which includes the aspect of age, English language, skilled occupation nomination, skills assessment, health assessment, character assessment. Elaborating upon this aspect the applicant is required to be less than 50 years at the time of application. Proficiency in English language is also vital for the applicant for the individual to work effectively in Australia. Migration Regulations 1994 Subclass 457 REG. 2.73 deals with the aspect of process of nomination which is vital part for the application of skilled visa. It requires skilled occupation nomination at the time of application, the basis of which is supposed to be qualifications and skills under skilled visa [7]. The applicant is also required to undergo skills assessment prior the application of the visa, by Australian assessing authority. Health and character assessment are also vital in the application of skilled visa. Moreover, as Ada will be applying for skilled visa, it is essential for her to undergo Occupational English Test [OET]. In OET she is required to attain A “B pass” in all four OET components.

Skilled Occupations List - ANZSCO Code 254425

d. Migrations Regulations 1994 Instrument IMMI 16/059 deals with legislative instrument associated with skilled migration. The instrument deals with specifying skilled occupations, appropriate ANZSCO code is relation to an occupation, in association to the occupation relevant assessing authority, country [8].  Instrument IMMI 16/059 Schedule 1 contains Skilled Occupation List, with the help of which the applicant’s occupations are determined in terms of relative or independent sponsored skilled purpose of migration. Skilled Occupation List (SOL) 2016-2017 contains 183 occupations. If the applicant falls under any of the occupations as mentioned in the list, the applicant will be eligible for Skilled Visa 189 applications. As in the given scenario it can be noticed that Ada was a professional paediatric nurse, under ANZSCO Code 254425 she will be eligible for Skilled Visa, which deals with the description of Registered Nurse (Paediatrics) [9]. It has been stated by Registered Nurse (Paediatrics) that, an individual practicing certain profession under Registered Nurse (Paediatrics) and in accordance with Australian and New Zealand Standard Classification of Occupations (ANZSCO), then it would result in increased demand of the individual among the employers in Australia.  The authorized assessing authority for this particular ANZSCO code is Australian Nursing & Midwifery Accreditation Council [ANMAC], which requires a skill level of 1.  Under ANZSCO Code 254425, which deals with Registered Nurse (Paediatrics), it has been further provides with the job profile as mentioned in this code. It has been stated in the description, that the nurses that provides nursing care to neonates including children of all ages, through a variety of health and community settings. It is further emphasized in this occupation as stated in the description of the code that this occupation emphasizes on assessing severe and continuous needs of the children [10]. In this process the social, physical, family and cultural circumstances of the children are also taken into account. It has also been mentioned in the description of the particular code that the applicant under this occupation requires licensing or registration and a skill level of 1.    

e. In the context of the provided scenario it can be noticed that Ada’s sister, an Australian citizen was willing to sponsor Ada, hence under Australian State Sponsored Visa: Nominated (Provisional) Visa (subclass 489), Ada is required to obtain a minimum score of 60 in the points test of International Language Testing System [IELTS]. It is mentionable here that Schedule 6D Sub -regulation 2.26 AC(1) of Migration Regulations 1994 deals with General points test for the purpose of General points test for General Skilled Migration visas which is required to  be followed on the part of Ada. Part 6D.1of the act deals with Age qualification. As Ada falls under 6D13 she will obtain 25 points [11]. While English language qualifications have been described in Part 6D.2 of the act. In order to qualify this requirement, under 6D21 either she needs to have superior English at the time of application for which she would obtain 20 points or under 6D22 she needs to have proficient for which she would obtain 10 points. Part 6D.3 elaborates upon the aspect of overseas employment experience qualifications, not applicable for this scenario. Part 6D.4 discusses Australian employment experience qualifications, which is also not applicable for Ada. The qualifications associated with aggregating points for employment experience qualifications have been discussed in Part 6D.5. 6D.6 deals with Australian professional year qualifications, which also cannot be implemented for Ada. Part 6D.7 highlights on Educational qualifications. In Ada’s case, 6D75 would be applicable for which she would obtain 10 points. Part 6D.8 elaborates upon Australian study qualifications. Most importantly, Part 6D.13 is highly relevant to Ada’s case, which deals with Designated area sponsorship qualifications. This would fetch her 10 points.     

Australian State Sponsored Visa - Provisional Visa (subclass 489) and Points Test

f. The facts for the provided scenario put forward that Ada is in a married relationship with David. Making their relationship status as the edifice, under Partner (Provisional) visa (subclass 100) and (subclass 309), Australian Partner Visa can be applied [12]. It is mentionable here that, to be eligible for Australian Partner Visa, one of the partners is required to have citizenship of Australia, which in this case none of the partner was having. Partner visa also requires having Australian sponsor. As a result of this, it is important for Ada to get Australian citizenship, so that Partner Visa can be applied and she can sponsor David. Following the attaining of citizenship on the part of Ada, she would require to provide a statement in written form, with the help of which it would be guaranteed on her part that her partner would be supported by her for two years in the country that would accommodation cost and financial assistance so that reasonable living and requirements can be met. The required cost for the application of partner visa in case of onshore partner is $ 4575 since 1st January 2015, which is expected to increase to $6865. It requires to be mentioned here that, as David would be Ada’s offshore partner once she gets the citizenship of the Australia, the required payable fees would be $ 4630.  

The scenario provides the data that Ada’s son Albert is 10 years. Hence, once she gets the citizen of Australia, then under Migration Act 1994 Subclass 445, with the help of sponsoring him, under dependent child section, visa can be applied. As he is under 18 year, the additional application charge that Ada is required to pay is 595 AUD.

1220.0 - ANZSCO - Australian And New Zealand Standard Classification Of Occupations, 2013, Version 1.2 (2013) Abs.gov.au <https://www.abs.gov.au/ausstats/[email protected]/Latestproducts/9D532C2A8ADA454FCA257B9500131071?opendocument>

ANZSCO : - Australia Skilled Visa - Work In Australia (2016) Anzscosearch <https://www.anzscosearch.com/sol/>

Migration Amendment (2014 Measures No. 1) Regulation 2014 (2016) Legislation.gov.au <https://www.legislation.gov.au/Details/F2014L00286>

MIGRATION REGULATIONS 1994 - REG 2.27Cskilled Occupation In Australia (2016) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s2.27c.html>

MIGRATION REGULATIONS 1994 - REG 2.72Criteria For Approval Of Nomination--Subclass 457 (Temporary Work (Skilled)) Visa (2016) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s2.72.html>

MIGRATION REGULATIONS 1994 - REG 2.73Process For Nomination--Subclass 457 (Temporary Work (Skilled)) Visa (2015) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s2.73.html>

MIGRATION REGULATIONS 1994 - SCHEDULE 2Provisions With Respect To The Grant Of Subclasses Of Visas (2016) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch2.html>

MIGRATION REGULATIONS 1994 - SCHEDULE 6Dgeneral Points Test For General Skilled Migration Visas Mentioned In Subregulation 2.26AC(1) (2013) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch6d.html>

Migration Regulations 1994 - Specification Of Forms, Fees, Circumstances And Different Way Of Making An Application - IMMI 13/063 (2016) Legislation.gov.au <https://www.legislation.gov.au/Details/F2013L01242>

Migration Regulations 1994 - Specification Of Forms, Fees, Circumstances And Different Way Of Making An Application - IMMI 13/063 (2013) Legislation.gov.au <https://www.legislation.gov.au/Details/F2013L01242>

Migration Regulations 1994 - Specification Of Occupations, A Person Or Body, A Country Or Countries - IMMI 16/059 (2015) Legislation.gov.au <https://www.legislation.gov.au/Details/F2016L00800/Explanatory%20Statement/Text>

Migration Regulations 1994 - Specification Of Tests, Scores, Period, Level Of Salary And Exemptions To The English Language Requirement For Subclass 457 (Temporary Work (Skilled)) Visas 2015 - IMMI 15/028 (2016) Legislation.gov.au <https://www.legislation.gov.au/Details/F2016C00510>

Migration Regulations 1994 (2016) Legislation.gov.au <https://www.legislation.gov.au/Details/F2015C00065>

MIGRATION REGULATIONS 1994 (2014) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/>

Partner (Provisional) Visa (Subclass 309) And Partner (Migrant) Visa (Subclass 100) Document Checklist (2016) Border.gov.au <https://www.border.gov.au/Trav/Visa-1/309-/Partner-(Provisional)-visa-(subclass-309)-and-Partner-(Migrant)-visa-(subclass-100)-document-checklist>

Temporary Skilled 457 - Work Sponsorship For 4 Years (2015) Prepareforaustralia.com.au <https://www.prepareforaustralia.com.au/australia-visa/visas/work-employment/general-skilled-migration/temporary-457.aspx>

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