Migration Law: Immigration And Citizenship

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Migration Law: Immigration And Citizenship

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Migration Law: Immigration And Citizenship

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Question:
Discuss about the Migration Law of Immigration and Citizenship.

Answer:

Issue:
Can James lodge a valid application for a Skilled (Provisional) (Class VC) Subclass 485 visa and whether he will be able to meet the criteria of the grant?
Application of Law
The requirements of Subclass 485 visa for being eligible for applying for this visa are that the:[1]

The person should be below the age of 50 years,
The person should be in Australia,
The person should meet the Australian study requirement of two years,
The person is a graduate with a qualification that is eligible recently or with qualifications and skills that relate to that occupation which has been mentioned in the skilled occupation list.

The Australian study requirement needs to be met in the six months before the applying for the visa. This requirement is met if the person can satisfy that there has been the completion of one or more diplomas, trade qualifications or degrees as a result of the course by an Australian educational institution. The application must be lodged within six months of the completion of the studies in Australia.
In the case of Patel v Minister for Immigration and Citizenship (2011) FCA 1220 (31 October 2011) in this case it was opined by the Court that the requirement of skill assessment was of ‘at the time.’ The court opined that since the requirement of assessment application was at the time when the application was made and the fact that the assessment application was not made led to the dismissal of the appeal.[2]
Thus, in the case of James though he has studied for full time for 4 years in Australia he would not be able to apply for the Skilled (Provisional) (Class VC) Subclass 485 visa since he does not satisfy the criteria that the qualification has to be within six months of passing out of the course at the time when the application is made.
Issue
Can a valid application be lodged by James for a Temporary Business Entry (Class UC) subclass 457 visa and what are the criteria that are required to be fulfilled?

Application of Law
The skilled workers are allowed under subclass 457 the Temporary work visa who come to Australia and work up to four years for an approved business. It is required by the approved business to sponsor the person.[3] The criteria for the visa that are required to be fulfilled are (i) if the business is an approved business which is ready to sponsor and (ii) if the skills required filling the nominated position by the business that is an approved business is there to the individual. Thus these criteria would be required to be fulfilled by James for obtaining the visa under subclass 457.
In the case of Smallwood v, Ergo Asia Pty Ltd [2014] FWC 964 a legally effective contract for employment with a 457 visa holder cannot be made by an employer who is not under the 457 visa scheme an approved sponsor.[4]
The Australian business by Standard Business Sponsorship allows the business in Australia to meet the skill needs that are immediate through the sponsoring of the skilled workers from overseas to work in positions that are nominated in their business.
Thus, in the case of James since the company has a valid Standard Business Sponsorship and is willing to sponsor James then James can file for an application for the visa under 457. Further since the company is a valid sponsor it can have an effective employment agreement with James.
Issue
Application Law
If a person’s visa is canceled in Australia, he becomes an unlawful citizen for no longer possessing a valid visa. In the case of Bedwell v. Minister for Immigration and Ethnic Affairs(1992) 33 ALD 368 where the lodgment of the application was placed by the applicant on a solicitor and the same was done after the visa expiry date. The decision that the applicant was illegal due to reasons beyond his control was not set aside. Thus in the case of James, there are no compelling grounds that would allow the decision to be set aside.[5]
The unlawful non-citizen due to expiry of visa who have applied for visa application previously and the same has been refused would be subjected to section 48 and possibly section 48A of the Migration Act.[6] The person whose visa has been canceled is limited under section 48 for making any other further applications.[7] Thus if there is no substantive visa that a person is holding, meaning thereby that he is not unlawful or on a bridging, and his visa has been canceled or refused once then section 48 would likely to apply. The only waiver that is allowed under this is under Schedule 3 that there are children involved who are dependent, or the relationship has been one of 2 years of more.
In the case of James if his visa is rejected before he can apply for another substantive visa then he would become an unlawful citizen and the section 48 bar shall be applicable and the waiver under Schedule would also not be applicable since there are no children and the relationship is not 2 or more years.

References
Bedwell v Minister for Immigration and Ethnic Affairs [1992] 33 ALD 368
Patel v Minister for Immigration and Citizenship [2011] FCA 1220
Smallwood v, Ergo Asia Pty Ltd [2014] FWC
Temporary Graduate Visa (Subclass 485) (2016) Border.gov.au
Temporary Work (Skilled) Sub Class 457 Visa (2016) border.gov.au
What If My Visa Application Is Refused Or My Visa Is Cancelled? (2016) Border.gov.au
What Are The Consequences Of Visa Refusal Or Cancellation? | Australian Human Rights Commission (2016) Humanrights.gov.au accessed 19 December 2021.

My Assignment Help. Migration Law: Immigration And Citizenship [Internet]. My Assignment Help. 2017 [cited 19 December 2021]. Available from: https://myassignmenthelp.com/free-samples/migration-law-immigration-and-citizenship.

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