Australian Migration Law

This article provides information about different visa classes and their requirements under Australian Migration Law. It covers topics such as Partner Visa Classes, Visitor Visa Class FA subclass 600, and the Code of Conduct for registered migration agents.

Running head: AUSTRALIAN MIGRATION LAW
Australian Migration Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Answer 1..........................................................................................................................................2
Answer 2..........................................................................................................................................6
Answer 3..........................................................................................................................................8
References......................................................................................................................................10

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Answer 1
To
Charles Newman
Sub: Information regarding Partner Visa Classes
From
ABC
Migration Agent
Kew, Victoria
Australia
Dear Charles,
This is in reference to your query regarding the partnership visa that you are interested to apply
for in Australia. I would like to provide you with certain important information regarding the
concerned visa.
Main difference between 309 visas and 820 visas
Subclass 309 Visas

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The Partner visa for Australia subclass 309 is a temporary resident visa for de facto partners or
spouses of permanent residents, Australian citizens and eligible New Zealand citizens that are
residing outside the country while lodging the application with the Australian Department.
Since you are not married, your relationship with Heather Smith will be considered as a de facto
relationship. In order to be eligible to apply for this Subclass 309 visa, you must satisfy the
following requirements:
i. you are older than 18 years of age;
ii. you have been in a de facto relationship for minimum 12 months;
iii. your partner must be either an Australian citizen, eligible new Zealand citizen or an
Australian permanent resident;
iv. you do not have any common parent;
v. your partner being a permanent Australian citizen is your eligible sponsor;
The 12-month relationship criteria may be waived while applying for this visa if:
i. you establish you had registered your de facto relationship;
ii. your partner is a holder of permanent humanitarian visa;
Since, neither of the circumstances exists, it is mandatory for you to establish the 12-month de-
facto relationship with your partner. The visa shall be valid for two years.
The Partner visa subclass 309 shall entitle the holders to the activities enumerated below:
i. to arrive and stay in Australia until decision for permanent visa is being processed;
ii. to enroll in Medicare;
iii. to work in Australia;

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Partner Temporary Subclass 820 Visa
This visa can be applied if the applicant is a de facto a partner of an Australian permanent
resident, Australian citizen or an eligible New Zealand citizen. The visa can be applied while the
applicant is living in Australia and the application is lodged and while the decision is being
made.
In order to apply for the subclass 820 visa, it is important that:
i. the partner is an Australian permanent resident;
ii. the partner is Australian citizen, or,
iii. the partner is an eligible new Zealand citizen;
This subclass visa shall entitle temporary residence status to the partner authorizing the partner
and the applicant to live together. It shall also allow the applicant to work, study and enroll in
Medicare in the country. The applicant may also apply for Subclass 801 visa, which will permit
the partners to live in the country permanently after such visa is granted.
The main difference between these two classes of visa is that if the applicant is living outside
Australia, he may apply for Australia temporary residence visa subclass 309 and the permanent
residence subclass 300 package. If the applicant is residing in Australia, he may apply for the
subclass 820 visas and 801-visa application package.
General Requirements for a valid Visa application
According to section [45] of the Migration Act 1958 (the Act) the Minister for Immigration and
Citizenship authorizes to grant a visa to enter, remain or travel in Australia to a non-citizen1.
1 Migration Act 1958 (the Act) at section [45];

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According to section 45 to 46 of the Act, Division 2.07 and regulation 2.10 and Schedule 1 of
the Regulations, a legislative scheme is developed that set out the requirements of a valid visa
application for each specified class of visa2. A valid visa application is defined as an application:
i. for a particular class of visa;
ii. on the application form that is approved for the particular class of visa which has been
completed as per the instructions on the form:
iii. that fulfills all the requirements of Schedule 1 of the regulations which includes lodging
of the visa form at the correct place and the applicant being at the location mentioned by
the Regulations;
iv. which includes the residential address of the applicant;
v. which entails the relevant visa application charge (VAC) as is mentioned in the
Schedule 1 of the Regulations for particular class of visa;
It is important to notify the department regarding the application in writing and any application
can be withdrawn any time before any decision is made3. In case of any change in the
circumstances after applying for the visa, the changes shall be notified to the Department. Under
the Migration law, the department shall inform about the application at the address provided in
the application.
In case the visa granted to the applicant is subjected to certain conditions like (restrictions on
study or work) the conditions should be followed otherwise the visa shall be cancelled.
Consequence of not making a valid application
2 Migration Act 1958 (the Act) at section [45] and [46].
3 Department Of Immigration And Citizenship INVALID VISA APPLICATIONS (Commonwealth
OMBUDSMAN,2009)https://www.ombudsman.gov.au/__data/assets/pdf_file/0020/26192/
investigation_2009_10.pdf.

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If the requirements of a valid visa stipulated under section 45 to 46 of the Act, Division 2.2 and
Schedule 1 of the Regulations, is not complied with, the visa application shall be considered as
an invalid visa application.
Consequently, in case of an invalid visa application, the visa applicant shall be entitled to a
refund of any charges or fees paid set out in Schedule 1 with respect to the visa application.
Further, if a visa application is rendered as invalid, it does not imply that a visa is refused instead
it allows the visa applicant to apply for another visa application4.
The Migration Act allows determination of the invalidity of a visa application through judicial
review and excludes it from the consideration of Refugee Review Tribunal [RRT] and
Migration review Tribunal [MRT].
If a visa application is determined as invalid, any bridging visa that has been granted in
association with the visa application, the same shall cease to be effective 28 days post the
determination of the invalid visa. The visa applicant cannot hold a bridging visa for a visa
application that has been disregarded by the Department of Immigration and Citizenship
[DIAC].
Answer 2
Roland has been granted a Visitor Visa Class FA subclass 600 and it has certain conditions
attached to such visa such as 8101,8201,8501,8503.
Visitor visa (subclass 600)
4 Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au https://www.australia.gov.au/information-and-
services/immigration-and-visas.

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This visa permits the visa holder to visit Australia for visitor or business visitor purposes for
a minimum period of 3 to 12 months. Further, there are certain conditions attached to this visa.
a) Work condition [8101]
The 8101 condition shall not entitle Ronald to work while he is in Australia and in case of
breach of this condition, the Immigration Department shall cancel the visa.
b) Study conditions [8201]
Ronald shall not be entitled to engage in any study or training for a period more than 3
months.
c) No Further stay [8503]
The Visitor visa (subclass 600) shall prevents Ronald from applying any further visa in
Australia5. However, regulation 2.05(4) stipulates the circumstances under which the Minister
might waive a ‘No Further Stay’ condition include:
i. if the applicant was subjected to compassionate and compelling circumstances that is
beyond his control which has resulted in significant change in the circumstances of the
person;
ii. if the visa applicant request the Minister in writing to waive the condition;
d) Health Cover condition under 8501
The visitors entering into the country are required to undertake health while the holder is
residing in Australia.
5 Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au https://www.australia.gov.au/information-and-
services/immigration-and-visas.

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e) Condition [8558]
The visa holder is not allowed to stay in the country more than 12 months within the 18
months period.
Ronald will have to satisfy the following requirements:
i. he has been in a de facto relationship with Jeanette Queen for at least a year prior to the
application of partnership visa;
ii. he has a valid passport;
iii. their relationship is genuine and is continuing since its inception;
Ronald is on a visitor visa, which has a condition of 8503 that prohibits him for applying for
another visa. However, Ronald cannot request to waive the ‘No Further Stay’ condition as
though Ronald’s wish to remain in Australia with Jeanette may amount to ‘compassionate’
circumstance but such circumstances cannot be said to be ‘beyond the control’ of Ronald as was
held in Ramos v Minister for Immigration [2017]6. Hence, the partnership visa application has
been rendered as invalid because it did not establish de facto relationship, which is mandatory
requirement for obtaining the visa.
Answer 3
a) As per the clause 2.1 of the Migration Agents Regulations 1998, a registered migration
agent must act as an agent of Australia and must ensure the legitimate interest of his or
her clients. He must deal with the clients fairly, competently and diligently7. According to
clause 2.9, a registered migration agent is prohibited from making any statements or
6 Ramos v Minister for Immigration [2017] FCCA 2412.
7 Migration Agents Regulations 1998.

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encourage making of statements that the agent believes to be inaccurate or misleading. As
per clause 2.9A, the migration agent is prohibited from providing deceiving or
misleading information or withholding relevant information to the authority.
In this case, being a migration agent it would have amounted to an infringement if I had
withheld any relevant information related to the clients Ronald and Charles from the
Immigration Department that would have otherwise been of great relevance.
It would have amounted to an infringement of the Migration Agent Regulations and
Code of Conduct, if I had made deceiving and misleading statements before Charles and
Ronald regarding their success in obtaining their desired class of visas. Further, it would
have also amounted to breach if I had misrepresented that I would be able to procure the
desired decision under the Migration Regulations 2.15 and Migration Act 19988.
Nevertheless, I had diligently provided all relevant and necessary information to
both the clients with respect to the possibility of succeeding in the obtaining their
respective visas.
As per clause 1 of the Code of Conduct, not providing a code of conduct copy to
the clients may amount to violation. As per clause 3 of the Code, the office was small and
had files containing information about clients which were visible to any clients visiting
the office, amounting to breach of confidentiality. Furthermore, revealing information
about another client to Charles was also a breach of confidentiality.
b) If I had lodged an invalid visa application, it would have amounted to non-compliance
with the legal provisions of the Migration Regulations and the Code of Conduct.
According to clause 2.17 of the Migration Regulations, an agent must not encourage a
8 Migration Act 1998 (the Act).

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client to lodge any application that has no hope of success or is vexatious9. The client
must be notified in writing, if the client persists, a written acknowledgement must be
obtained from him. It would have amounted to a breach of clause 2.1 of the Migration
Agent Regulations 1998, which requires the migration agent ensure legitimate interest of
this or her clients10. It would have also amounted to a breach of clause 2.9, which
prohibits an agent from encouraging the making of any statement that is believed to be
misleading or deceiving. As per clause 1 of the Code of Conduct, not providing a code of
conduct copy to the clients may amount to violation. Further, as per clause 3,
confidentiality about client’s information is a priority which should not be violated.
9 Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au https://www.australia.gov.au/information-and-
services/immigration-and-visas.
10 Visitor Visa (Subclass 600) (2018) Homeaffairs.gov.au https://www.homeaffairs.gov.au/trav/visa-1/600-

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References
Department Of Immigration And Citizenship INVALID VISA APPLICATIONS
(Commonwealth OMBUDSMAN, 2009)
https://www.ombudsman.gov.au/__data/assets/pdf_file/0020/26192/investigation_2009_10.pdf
Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au
https://www.australia.gov.au/information-and-services/immigration-and-visas
Migration Act 1958 (the Act)
Migration Agents Regulations 1998
Ramos v Minister for Immigration [2017] FCCA 2412 (3 October 2017)
Visitor Visa (Subclass 600) (2018) Homeaffairs.gov.au
https://www.homeaffairs.gov.au/trav/visa-1/600-

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