Discuss about the Operation of the Migration Act.
In the provided scenario there can be notice that Wang wished to go to Australia. However, the fact that his English was weak was an issue in this scenario. In this context it is mentionable that according to Migration Amendment Act 2013 Subclass 457 visa conditions there are number of English language requirements that are required to be mentioned. Since 18 April 2015 the English language requirements for the 457 visa have been changed and made operative. The English language requirements includes for 457 visa includes the following English test which includes International Language Testing System [IELTS], Occupational English Test [OET], TOEFL iBT, Pearson Test of English (Academic) PTE, and Cambridge English: Advanced CAE [1]. It needs to be mentioned here that since the amendment of the English language requirements, for requirement is an average band score for the maximum tests, along with it, each component requires minimum band score. In order to apply 457 visa applications the validity of these tests are 3 years, which, after the lodgment of the application can be conducted.
In order to qualify in English language test for 457 visa, Wang needs to achieve 4.5 as the minimum score in every band along with an overall average score of 5 in International Language Testing System [IELTS]. In case of Occupational English Test [OET], for all four OET components A “B pass” is required[2]. However it is not applicable in case of Wang as it is a test for medical professionals and associated health professionals, where as he is a hotel chef. In case of TOEFL iBT he is required to achieve 36 as the total brand score including 12 as the minimum score in speaking and writing and 3 in Listening and Reading. Pearson Test of English (Academic) PTE is also not applicable for Wang as it is for academic purpose, the requirement for this test is 36 as the average band score along with it requires a minimum of 30 in each brand[3]. Whereas the requirement for Cambridge English: Advanced CAE is 154 as the average brand score along with minimum 147 in each band.
Though all the applicants for 457 visas are required to meet the requirement of English language Testing, however there exists few exemptions that are required to be mentioned. On the part of the applicant, if the individual holds a passport from Ireland, USA, Canada, UK or New Zealand or if the applicant has the educational background for 5 years at tertiary or secondary in English medium or if the applicant pays over the English Language Skills Exemption Threshold (ELSET) that is $96,400, exemptions are applicable.
According to Migration Act 1958 [amended 2013] Subsection 457 there are certain requirements that are required to be fulfilled on the part of the employer in order to apply for a worker to come to Australia which includes approval as a sponsor on the part of the employer, operation of an Australian business which functions within Australia or an overseas business in order to engage overseas employees with the intention for setting up a company within Australia [4]. It also requires on the part of the employers to demonstrate commitment in terms of employing regional labor and accept non-discriminatory employment functionalities. Under this legislation it is crucial to not have any adverse records associated with the business or any individual associated with the business. Migration Act 1958 [amended 2013] Subsection 457 also requires on the part of the employers to demonstrate commitment in meeting requirements of Australia in terms of providing training to Australian workers.
In this regard it can be stated that as Jimmy Tran was having a business in Melbourne, and the provided case do not mention any adverse records implies that Migration Act 1958 [amended 2014]Subsection 457 requirements would not have been breached if the employer would have entered the contract[5]. Similarly on the part of the employee under the act is required to be sponsored by an eligible employer, possess skills and qualifications as par the requirements of the position, display English language proficiency and having the eligibility for any appropriate licenses required for the position. In this regard it can be stated that though he was sponsored by an eligible sponsor yet he was not having English language proficiency, hence if he enters a contract it would have resulted in breaching Migration Act 1958 [amended 2013] Subsection 457. It is also required to be mentioned here that, a noticeable dimension of the scenario is condition in the contract exchange of $ 30000 for the sponsored work. According to reg. 2.87 of Migration Act 1958 [amended 2013] Subsection 457 it has been stated that on the part of the sponsor it is prohibited to recover certain costs in return of the sponsored works [6]. This would also result in breaching Migration Act 1958 [amended 2013] Subsection 457 if they enter the contract.
If they enter the contract, as already stated, it would result in breaching the Migration Act 1958 [amended 2013] Subsection 457. The penalty for the breach, under the act on the part of the employer would be civil penalty which includes 60 penalty units along with pecuniary penalty for breaching sponsor’s obligations [7] The breach of the obligations under the act, as mentioned would impose civil penalties which prescribes a minimum of $ 6600 in case of an individual, which in case of a body of corporation would be $33000.
Under skilled visa if Ada applies for migration to Australia there are certain requirements that are required to be fulfilled. Age is one of the crucial requirements that are required to be fulfilled, which requires the individual to be 50 at the time of application. Another essential requirement in this aspect is English language which requires an individual to have adequate ability in terms of English language, so that the individual can work in Australia. At the time of application nomination of a skilled occupation is also required on the basis of the skills and qualifications under skilled visa. Skills assessment also plays a vital role in this aspect. Prior the application of skilled visa, the applicant i.e. Ada is required to have an assessment of the skills by the Australian assessing authority that is designed to assess the nominated occupation [8]. It generally includes specific qualifications requirements. Health assessment is also a vital point in this regard that requires the applicant to have reasonably good health assessments done by a panel of a doctor and undertake a medical examination [9]. Character assessment is also included in skilled visa requirements, which necessitate the applicant to be of good character which also requires to be assessed. Other than that it is also required to be mentioned here that, as Ada is applying for skilled visa, she needs to undergo Occupational English Test [OET], in which she is required to attain in all four OET components A “B pass”.
According to Registered Nurse (Paediatrics) Australia, when under Registered Nurse (Paediatrics) Australia an individual practices a particular profession, in compliance with the Australian and New Zealand Standard Classification of Occupations (ANZSCO) 2544-25, then the individual is presently in demand on the part of the employers in Australia. It also needs to be mentioned here that, the compliance of the ANZSCO code 2544-25 for Registered Nurse (Paediatrics) in the present occupation of the applicant would result in increased scope of qualification for skilled visa [10].
Assessing authorities are accountable for performing assessments of the skills for the purpose of migration. It also needs to be mentioned here that, they do not have the authority for giving advice on the probability of the success of visa application. On the part of the applicant they are required to contact assessing authorities in order to obtain skills assessment of the applicant’s nominated occupation. In terms of assessment, it is noticeable that every assessing authority has their individualistic assessment timeframes, procedures and charges. In regards to protection of health and safety of the Australian community, Australian Nursing & Midwifery Accreditation Council [ANMAC] plays an integral role with the help of establishment of high nursing quality standards and training, midwifery education and assessment [11]. In terms of assessment of the nurse’s skills and midwives who intent to migrate to Australia in accordance to General Skilled Migration program Skilled Migration Services of ANMAC plays integral role and is responsible for it.
In case of most of the occupations under evidences of Migration Act 1958 [amended 2013] Subsection 457, having English language proficiency is vital [12]. In this context, among the number of English language proficiency test International Language Testing System [IELTS] is a mentionable examination that applicants need to appear. In the context of the provided scenario, it can be noticed that Ada applied for IELTS, where she obtained in all the four components 6.0. Hence, in this the points for English Language Ability Points are required to be mentioned. In English Language Ability, in terms of Superior English, the applicant is required to score 8 or above in IELTS in each of the four components of the test where the points would be 20. The required points for proficient English is 10, where the applicant needs to have a score of 7 or above in the IELTS in all the four test components. The points would be zero if the applicant is competent in English, where the applicant needs to have a score of 6 or more, in all the four test components, in IELTS. Hence it can be stated that, in terms of English Language Ability points as Ada scored 0, under Migration Act 1958 [amended 2013] Subsection 457 her application for the visa would not be affective she failed to qualify in the IELTS.
As Ada’s sister who had Australian citizenship residing in Wantirna, was willing to sponsor her, under Australian State Sponsored Visa: Skilled –Nominated (Provisional) Visa (subclass 489) she needs to score a minimum of 60 score on the points test .
In the context of the provided case, it can be noticed that Ada is in a married relationship with David, her husband. On the basis of their relationship status, Australian Partner Visa under, Partner (Provisional) visa (subclass 309) and (subclass100) can be applied [13]. However, in order to obtain Australian Partner Visa one of the, partner needs to have Australian citizenship, which Ada was not having. It is further mentionable here that Australian sponsor is also required for a Partner Visa. This makes it essential for Ada for obtain citizenship of Australia in order to apply for Partner Visa and sponsor David [14].
After attaining citizenship, she would be required to provide a written statement where it would be guaranteed that she would support her partner for first two years in Australia that would consist of financial assistance in order to meet living reasonable requirements and accommodation. Since 1st January 2015 the application charge required for onshore partner visa is $ 4,575, which is supposed to increase to $6,865. However, as David would be her offshore partner once she gets the citizenship the payable fees required to be paid by Ada is $4630.
As Ada’s son Albert is 10 years, so if she gets Australian citizenship, then by sponsoring her son, under Migration Act 1958 [amended 2013] Subsection 445 visa category under dependent child type can be applied [15]. The additional applicant charge for children under 18 years required to be paid by Ada is 595 AUD.
References
457 English Requirement | Acacia | Immigration Australia (2015) Acacia-au.com <https://www.acacia-au.com/457-english-requirement.php>
Australia Skilled Visa Requirements: Australian Visa Bureau (2016) Visabureau.com <https://www.visabureau.com/australia/visa-requirement.aspx>
Australian Nursing & Midwifery Accreditation Council | ANMAC (2016) Anmac.org.au <https://www.anmac.org.au/>
Berg, Laurie, Migrant Rights At Work (2015)
Conroy, Kathleen, Subclass 457 Visas: Employer Obligations (2016) Gadens.com <https://www.gadens.com/publications/Pages/Subclass-457-visas-Employer-obligations.aspx>
Crossin, Patricia, Administration And Operation Of The Migration Act 1958 (Legal and Constitutional References Committee, 2006)
English Language Requirement For Subclass 457 Visa | My Access Australia (2016) Myaccessaustralia.com <https://myaccessaustralia.com/australia-457-visa-english-language-test-requirement/>
Federal Register Of Legislation – Australian Government (2016) Legislation.gov.au <https://www.legislation.gov.au/Series/C2004A07412>
Fiancee Visa – Partner Visas – Australian Visa Bureau (2016) Visabureau.com <https://www.visabureau.com/australia/fiancee-visa.aspx>
Jockel, Maria, 457 Visa Law (Thomson Reuters, 2008)
MIGRATION ACT 1958 (2015) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/>
Migration Amendment (Temporary Sponsored Visas) Act 2013 (2015) Legislation.gov.au <https://www.legislation.gov.au/Details/C2013A00122>
Partner (Provisional) Visa (Subclass 309) And Partner (Migrant) Visa (Subclass 100) (2015) Border.gov.au <https://www.border.gov.au/Trav/Visa-1/309->
Registered Nurse (Paediatrics) Australia (2016) Visabureau.com <https://www.visabureau.com/australia/anzsco/jobs/registered-nurse-paediatrics-job-australia.aspx>
Sorrenson, Monica, IELTS (McGraw-Hill, 2012).
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