Education and Employment Agencies

Education and Employment Agencies

Visa Migration Services Australia this week encountered another instance of a client receiving immigration advice from an Employment agency.

Regrettably, the advice was wrong and had potentially dire consequences.

The immigration advice received was that as because a Secondary Applicant holding a Visa Subclass 500 – Student, the person was entitled to work full working hours per week under the Migration Regulations 1994 if the Primary Applicant had deferred studies … wrong.

The result was that the Secondary Applicant was in breach of Condition 8104. Such a breach can lead to cancellation of a visa or visa refusal if another application is lodged. This would have had serious problems for the visa holders, but also the employer who was wanting to sponsor the Secondary Applicant for sponsorship for a Visa Subclass 186 – Employer Nominated Scheme.

There were two options:

  1. Cease working 40 per week immediately and work the legislatively mandated 40 per fortnight.
  2. Or identify a solution to allow the Secondary Applicant to continue working.

Visa Migration Services Australia identified that it was possible for the Secondary Applicant to keep working. There were several factors that enabled this:

  1. Due to Covid-19 the Department of Home Affairs (DoHA) has declared that some students could work beyond the mandated hours. But this applies to work in small number of industries.
  2. The Secondary Applicant was working as an IT Software Engineer for an online grocery services website.

The industry of grocery sales and distribution is is deemed by the DoHA as critical services industry (as per under the Australian and New Zealand Standard Industrial Classification (ANZSIC) guidelines). But ANZSIC is out of date and mentions nothing of the evolving online food services industry.

Regardless, Visa Migration Services Australia took the position that the online food services industry must be deemed as comparable, and therefore the Secondary Applicant was providing critical services to a critical industry.

The result: A happy client and relieved employer.

But it is an important lesson: get your advice only from advisors qualified in Australian immigration law.

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