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Migration Law Of Australia

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Migration Law Of Australia

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Discuss about the Migration Law of Australia.

Situation of Walter’s Visa in Relation with Work
Walter has come to Australia and has applied for a visitor’s visa under Class 600. It is equivalent to that of a tourist visa. Any person working in Australia with a tourist visa or a visitor’s visa is considered illegal. Usually only permanent residents and people domiciled in Australia can work. The nature of Walter’s visit is not permanent in nature and during his visit he is meeting his cousin for whom he has to build a deck along with landscaping. His cousin intends to appoint him as a contractor. Now the problem is to decide the nature of action which Walter is doing which will prove whether the job he will do actually comes under ‘work’.  He is confused because he considers the job as more of a help than actual ‘work’. Moreover he does not expect any remuneration for the job he will be doing. It is relevant to inspect as to what constitutes ‘work’ under various statutes and deliberations in Australia and if it turns out that whatever Walter will be doing is actually work, whether he will be able to continue to do so with his working visa ?
Defining Work in Scenario of Walter
Walter has to ensure that he is not branded as an illegal worker in Australia. He has to ensure that he becomes legally eligible to work in Australia while he is staying temporarily in Australia[1]. Walter has to ensure that he takes a working holiday visa which will allow him to work even though he is a visitor in Australia. The requirements to be satisfied for applying for a working holiday visa are-

The person applying for the visa must intend to work as well spend vacation for a term of maximum 12 months. Here the time period is fixed. In case Walter wants to stay and work for a longer period, he must renew his working holiday visa.
His / her age should be between the ranges of 18 to 30 years. Any person below 18 or above 30 years will not be eligible for this particular class of visa.
He/ she should carry a legitimate and valid passport from the country of that person’s origin.
Walter should be able to show that he is having enough money to support himself during his working holiday in Australia. The suggested sum is $5000 (approx). He should save enough money to be able to buy a return ticket to his home country, once his stay ends. He must also not have a child to whom he is a guardian while he stays in Australia. In this case no such information is available hence the clause is immaterial.

Now it is imperative for Jesse to provide Walter some sort of consideration for the work he will be doing. Section 254AC of the Migration Act 1958 discusses about what happens when someone allows non resident with a valid to work in a condition adverse in nature. Jesse has to ensure healthy working condition to Walter[2].
Section 254 AG of the Migration Act, 1958 defines the term ‘work'[3]. It says that a contract must be made between the employer and the employee. It should not be for domestic purposes according to the contract. The person who employs the other one should provide modes of transportation either on license or bail for ensuring services to be done by the employed person.
 Walter is eligible to engage in building of the deck and the landscaping work and there are no qualms as long as he derives a work holiday visa and fulfils other conditions. He must be paid proper salary for the services he provides. There are sanctions and penalties if he contravenes the requisites of the procedures which can be-

A warning can be given by the administrative authorities by sending an Illegal Worker Warning Notice (IWWN).
Walter can be fined with a sum of $3240 for infringement of work norms.
The civil courts can impose fine of $ 16,200 on Walter for contravening working norms[4].
Criminal case can be filed and criminal courts can impose fine of $21,600 or award jail term of 2 years.
If Walter commits the same offense after conviction he may be charged for aggravated offense. He can be fined with $54,000 and he can again be imprisoned for two years.

Hence it is advisable to Walter to immediately arrange for a working holiday visa and enter into a contract with Jesse to prove that he is validly employed.
Legal Workers – A Guide For Employers (2016) Border.gov.au https://www.border.gov.au/Busi/Empl/Empl/employing-legal-workers/legal-workers-a-guide-for-employers
Migration Act 1958 – SECT 245AG (2016) Austlii.edu.au https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s245ag.html
Visit And Work (2016) Border.gov.au
Migration Act  1958 – SECT 245AC (2016) Austlii.edu.au

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