Australias Visa System Section 44 A Law Act

Question: Discuss about the Australias Visa System for Section 44 A Law Act. Answer: 1. A As stated in Section 4AA of the Family Law Act (1975), 'de facto relationship' is a kind of relationship in which two people live together as a couple without marriage and registered relationship.[1] The relationship starts from the time a couple start living together on a genuine domestic basis. However, the relationship is not considered as de facto relationship if the two individuals are legally married or are related by family relations. In order to satisfy the requirements of a de facto relationship, the couple who are not living together may be required to provide the evidence that they are not living separately on a permanent basis to satisfy the necessities of a de facto relationship. Emma do qualify as a de facto partner of Jason because they had been living together for six months but due to the ill health of Jason's mother, he had to return back to Australia. Now he wants to sponsor Emma to come to Australia being her de facto spouse. Although, they are living separately for a certain period of time, they lived together for six months before Jason went back home. It is expected under the law of Australia that couples may live physically apart from each other for a period of time because of work or due to some other commitments, but they should remain in a genuine and continuous relationship and should be committed to each other despite of all other liabilities. Moreover, de facto relationship exists from the time couple start living together and there is no minimum time period limit required to establish a relationship as de facto.[2] There is no requirement to select other options as Jason is in a de facto relationship with Emma currently and is committed to her. Therefore, he should sponsor Emma to come to Australia. Moreover, in case where the issue of period of physical cohabitation arises, Department of Migration may take into account various other aspects such as the duration of relationship, nature and extent of mutual residence, financial interdependency, or performance of household duties.[3] B. In order to sponsor her parents to come to Australia, Emma can make use of Parent Visa. The eligibility criteria of sponsoring parents to come to Australia is that the sponsoring child should be an Australian citizen, permanent resident of Australia or eligible citizen of New Zealand. There are two categories of Parent Visas i.e. parent category, in which, parents can apply to migrate to Australia being sponsored by their child who is a citizen or permanent citizen of Australia, or eligible citizen of New Zealand. The other one is Contributory Parent i.e. to allow the expansion of the Parent Migration Program on the basis that applicants pay a higher visa application charge and a larger Assurance of Support. In order to be granted a visa in the Parent category, one must satisfy the following requirements; Must have a child, who; i) is an Australian citizenship, Australian permanent resident or eligible New Zealand citizen ii) must be a resident of Australia for at least two years iii) must be willing to sponsor parents iv) must be at least of 18 years Must pass the balance of family test; i) At least half of the children live permanently in Australia ii) More number of children to be living legally and permanently in Australia than in any other country individually Must satisfy certain public interest criteria; i) must satisfy health and character check criteria ii) an approved Assurance of Support and have lodged an Assurance of Support bond. Parent visa would be the most appropriate option for Emma to sponsor her parents to come to Australia as she was granted the permanent citizenship of Australia before three years. She satisfies all the necessities of the Parent Visa as she is above the age of 18 years and she is willing to sponsor her parents. For satisfying the criteria of public interest, the parents of Emma must satisfy the health and character criteria also. According to the requirements of Aged Parents Visa (Subclass 804), males must have completed the age of 65 years and females must have completed the age of 63 years (border.gov.au, 2016). Therefore, both the parents of Emma do not satisfy the age requirement for Visa purpose as the age of her parents is 62 and 58 respectively. That is why; the best option for Emma would be Parent Visa instead of Aged Parents Visa. Contributory Visa would also be the best option for Emma but the requirements are higher visa application charge and a larger Assurance of Support (Australian Visa Bureau , 2016).[4] C. The requirements of Remaining Relative visa (subclass 835) or (subclass 115) are; i) It allows someone to come to Australia and to stay as a permanent resident whose only near relative is living in Australia and is a permanent resident of Australia or New Zealand and is willing to sponsor them ii) Applicant must be staying outside at the time of granting of visa for Australia. iii) There must be someone in Australia who provide them the assurance of support iv) They must meet the health and character requirements for the visa purpose. The health examination is valid only for a period of 12 months for all the members including in the application for visa. The character requirement includes the police verification from every country the person lived for 12 months or more during the last 10 years.[5] As Michelle satisfies all the essential requirements for visa, through the remaining relative visa, she can come to Australia to live with her sister and rest of the family permanently and she can include the name of her child in her application. She must have to provide the health examination report and police verification certificate of herself and the child at the time she will be asked by the migration authorities. This is considered as permanent visa and it permits the person applying and his/her to live permanently in Australia as a permanent resident of Australia. The person can apply for the citizenship of Australia after becoming the resident of Australia. 2. a) The main purpose of development in immigration system of Australia is to reduce the deficiency of skills in Australia. According to a temporary business visa i.e. Subclass 457 work visa, employers are provided with the permission by the government of Australia to sponsor the workers from foreign countries. The period for which the employers can sponsor the workers having desired skills may extend from one day to four years. The workers are allowed to keep their families during this period along with them and the family members can work also for that specific duration.[6] The essential requirements which are required to be followed for 457 work visa are; i) Eligible employers should sponsor the employees, ii) the employees must satisfy the requirements of qualification, experience, and skills desired for the particular position offered by the employee iii) the employees are required to meet the requirements of English language proficiency i.e. must have scored the point score of 5 in IELTS in all the four components separately iv) the employees must possess the required license desired for the position offered. It is essential for Wang to obtain the average point score in all the tests and minimum point score in each of the components. The scoring criteria of English test are mentioned below; i) the average score essential for IELTS is 5 and the minimum score of 4.5 in particular group ii) for health and associated professionals, to pass the 'Occupational English Test (OET)' is essential and 'B pass' is required for each of the four components. iii) total group score of 36 in TOEFL iBT is essential along with at least 3 in listening and reading and 12 in speaking and writing. iv) average group score of 36 in Pearson Test of English (PTE) is essential along with 30 particularly in each group. v) average group score of 154 and minimum of 147 particularly in each group is essential to clear Cambridge Advanced English (CAE). All the applicants are required to essentially meet the requirements of English language test in order to obtain the work visa. However, there are certain exemption provisions which are provided to the applicants which are mentioned below.[7] i) if they are having the passport from the countries like UK, USA, New Zealand or Ireland; ii) if they have accomplished the education of 5 years up to secondary or tertiary level from English medium; iii) if they are able to pay $96,400 over the English Language Skills Exemption Threshold (ELSET).[8] b) Tran can sponsor Wang if he satisfies all the desired requirements essential for an employer under 457 work visas and is considered as eligible for applying for worker requirements. However, he must not demand money from Wang in response to sponsoring Tran to come to Australia for work because it is an illegal act. Moreover, Wang will also be considered as involved in the illegal act if he satisfies the financial demand of Tran. In 2015, new civil and criminal penalties and visa cancellation provisions were framed as a constituent of 'paying for visa sponsorship', according to which, various sanctions shall be imposed on the person found being involved in demands, offers, acceptances, or providing of the advantages in return for the sponsorship of visa or for employment purpose.[9] Wang is also not good in English language and he is required to qualify the entire English language tests essential for the purpose of 457 visa or he shall also avail the facility of exemption from such te sts. There are various penalty provisions which are applied on the breach of provisions of Migration Act of Australia (austlii.edu.au, 1958).[10] Wang and Tran would be held guilty under civil penalty provisions if they would be found guilty.[11] Under civil penalty provisions which are relevant to sponsorship issues, a certain fixed amount of penalty shall be required to be paid by the person held guilty to the Commonwealth as an alternative to the proceedings to be occurred against him as a civil penalty order.[12] c) Workers who possess specific skills desired by a specific occupation can avail the facility of Skilled Migration visas in order to stay and work in Australia. Under the provisions of General Skilled Migration Program of Australia, the migrants and workers who possess some skills are allowed to apply for the permanent visa of Australia on the ground of their desired qualification, language ability, and experience of the skill. Before applying for work visa, the interested candidate must submit an Expression of Interest (EOI). SkillSelect is a skilled worker program which was introduced in 2012 by the Australian immigration department. It i8s an electronic two-stage procedure in which the eligible visa applicants are required to submit a claim in support of skilled migration through EOI. After submission, the applicants are then invited on the basis of their EOI to submit the application for visa. The selection criteria of the applicants for visa are based upon the point test scores obtained by them in number of tests. The eligibility criteria of obtaining the visa include the fulfillment of desired English language requirements by the applicants. Moreover, they are required to meet the requirements of essential skills assessment prior to the submission of EOI. In order to apply for migration to Australia under the category of skilled visa, Ada must submit an EOI prior to the application for visa. She would be invited by the authorities to submit the application on the basis of her EOI. Moreover, she would be required to meet all the essential requirements of the English language tests essential for the purpose of visa for Australia.[13] The minimum requirement for the purpose of immigration to Australia is the minimum scores in the Point Test Score. There are points in the test on the basis of age, English language ability, Employment skill, qualification, Australian study requirements, credentialed community language qualifications, study in regional Australia, skill and qualifications of partner, professional year in Australia, nominated by State or territory government, and nominated by State or territory government or sponsored by an eligible family member.[14] Ada should apply for visa under Skilled Independent visa (Subclass 189) which applies for the workers who possess skills and qualified points test and who are not being sponsored by any employer or family member and is not being nominated by state or territory government. When they are considered to be eligible for application, they must have to choose an occupation from the skilled occupation list mentioned in the form.[15] They are required to qualify all the skills assessments and should be below the age of 50 years and possess the competent knowledge in English language. They should meet the requirements of point score mentioned in the letter of invitation.[16] d) Australian and New Zealand Standard Classification of Occupation (ANZSCO) codes is basically a search facility which gives new updates on General Skilled Migration visas for subclasses i.e. 189, 190, and 489. This classification system is based on skills which can be further used by users to find occupations and services in the Australia and New Zealand. In addition, the users have facility to compare the ratio of occupation produced by both the countries. This search facility is completely web based which provides a unique password and a list with the titles of occupations which when clicked shows the meaning of occupation (abs.gov.au, 2016). According to the ANZSCO code, Ada's occupation of pediatric nurse code should be 254411 as Nurse Practitioner. Assessing Authorities are accountable for assessing the skills needed for migration. As per the case of Ada, the assessing authority should be Australian Nursing and Midwifery Accreditation Council (ANMAC) and Medical Board of Australi a (MBA).[17] e) Ada is 33years old and completed her Bachelor's degree in Nursing Birmingham University (U.K.). She had 5 years of work experience at Queen Mary Hospital situated in Hong Kong and scored average marks in IELTS test which comprises of 4 test components. Her sister who lives in Australia is ready to subsidize her and her family for migration. Ada applied for Skilled Independent (Subclass 189) visa. Therefore, she needs to score 60 points as to pass the test. According the criteria of age, she is 33 years old and suitable for 25 marks which are passing points. According to the English test criteria, she scored average marks in IELTS test which comprises of 4 test components therefore; she does not scored any points. According to her work experience the work tenure she worked at Queen Mary Hospital, she is suitable for 10 points which comes under abroad employment in voted resembling occupation or a skilled occupation. Based her on educational qualification, her points should be 15 pass points because she had done her Bachelor's in Nursing from well-known University. Another criteria of sponsorship, she can score 10 points due to her sister, which is an Australian Citizen and ready to subsidize her and her family but to gain this chance she have to apply for visa under subclass 489. According to all the criteria, she scored total 50 pass points but the pass points for Visa subclass 189 is minimum 60 and still she lacks 10 points. At the end she does not pass the test for applying the visa of Australia. By this her status for applied visa will be get affected, so she should go for the sponsorship visa subclass as her sister is capable to sponsor her. If her sister sponsor's her than she will be suitable for visa under subclass 489. At the last, it is recommended to her that she should apply visa for Australia under subclass 489 rather than 189 because she is not matching the criteria of pints pass test.[18] f) From time to time the charges have to pay for a change in visa which is based on the date of the application of visa is received by the authorities.[19] Between the time period of applying the application and receiving the application if the cost of application increased, so the applicant have to pay the increased amount for application. According to the present current visa pricing table for Skilled Independent (Subclass 189) and in fact she goes with another option and applies for subclass 489, she has to pay $3600 which is the base price of application because she comes under the category of 12a or 12d respectively as stated by subclass in which she is applying. Her husband is also interested in applying for this visa therefore; it will cost additional applicant charges of $1800 and her son which is 10 years old she have to pay $900 additional applicant charges for him. Now, she has to pay total $6300 as applicant charges to apply for visa of Australia. In addition, according to t he category of 12a, if any visa applicant is found as not possessing functional English, so they are expected to pay additional amount of $4885 which is known as second installment. Due to lack of functional English criteria, Ada has to pay second installment of $4885 along with the $6300 as visa application charges.[20] References Acacia,457 English Requirement | Acacia | Immigration Australia(2016) Acacia-au.com https://www.acacia-au.com/457-english-requirement.php Acacia,Online Points Test for Skilled Migration(2016) Acacia-au.com https://www.acacia-au.com/skilled-migration-points-test.php Anzscosearch,Search by Assessing Authority(2014) Anzscosearch https://www.anzscosearch.com/search-by-assessing-authority-post/ AustLII,Migration Regulations 1994(2016) Austlii.edu.au https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/ AustLII,Migration Regulations 1994 - REG 5.20Acivil Penalty Provisions(2016) Austlii.edu.au https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s5.20a.html AustLII,MIGRATION ACT 1958 - SECT 5Interpretation(2016) Austlii.edu.au https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html Australian Bureau of Statistics,1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2(2016) Abs.gov.au https://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/1220.0Search02013,%20Version%201.2 Australian Government,Work Visa Scams(2015) Border.gov.au https://www.border.gov.au/Trav/Work/Work-1# Australian Government,Skilled Independent Visa (Subclass 189)(2016) Border.gov.au https://www.border.gov.au/Trav/Visa-1/189- Australian Government Department of Human Services,Definition Of A Partner(2016) Humanservices.gov.au https://www.humanservices.gov.au/customer/enablers/definition-partner Australian Visa Bureau,Australia Parent Visa Questions: Australian Visa Bureau(2016) Visabureau.com https://www.visabureau.com/australia/parent-visa-faq.aspx Australian Visa Bureau,Australia Skilled Immigration Points Test - Australian Visa Bureau(2016) Visabureau.com https://www.visabureau.com/australia/immigration-points-test.aspx Australian Visa Bureau,Australia Skilled Visa Requirements(2016) Visabureau.com https://www.visabureau.com/australia/visa-requirement.aspx Department of Immigration and Border Protection,Fees And Charges For Visas(2016) Border.gov.au https://www.border.gov.au/Trav/Visa/Fees# Department of Immigration and Border Protection,Remaining Relative Visa (Subclass 115)(2016) Border.gov.au https://www.border.gov.au/Trav/Visa-1/115-# Family Court of Australia,De Facto Relationships - Family Court Of Australia(2016) Familycourt.gov.au https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/defacto-relationships/ Find Law,The Legal Requirements Of A De Facto Relationship(2016) Findlaw.com.au https://www.findlaw.com.au/articles/223/the-legal-requirements-of-a-de-facto-relationship.aspx Webster, Mark,Average Band Scores Accepted for 485 and 457 Visa English Tests | Acacia | Immigration Australia(2015) Acacia-au.com https://www.acacia-au.com/average-band-scores-accepted-for-485-and-457-English-Tests.php Work Permit,457 Work Visa | Australian Skilled Immigration(2016) https://www.workpermit.com/australia/457-work-visa.htm Work Permit,Australia Visa | General Skilled Migration (GSM) Program | Australian Immigration Visas(2012) Workpermit.com https://www.workpermit.com/australia/general-skilled-migration.htm