Reasons for the Court Ruling in the Case of Khan V Minister for Immigration

This letter of advice explains the reasons for the court ruling in the case of Khan V Minister for Immigration. It also discusses the implications of migration agents who fail to warn applicants of omission. The court's decision was based on the written law, and the appellant's failure to lodge an early application of a skills assessment led to the nullification of the visa application. Migration agents who fail to warn applicants of omission breach the code of conduct and can face penalties.

Surname 1
KHAN V MINISTER FOR IMMIGRATION
Name:
Course:
Date:

Surname 2
Letter of Advice
Dear client,
RE: Reasons for the Court Ruling in the Case of Khan V Minister for Immigration
On 15 march 2016, the appellant made application for a visa. The application was
rejected on 16th may same year by minister’s delegate. The ground for refusal suggested that
there was no evidence accompanying the application to prove that the appellant had made an
application for skills assessment. It was clearly evident that by 15th march of 2016 skills
assessment application had not been made.1 Therefore, the application failed to go through since
it was not possible to process his payment as he lodged an application again on 17th day of 2016.
On 27th day of the same year, a favorable assessment was conducted.
The primary judge referred to Katzmann J in Anand decision. In this case, there was
involvement of cl 487.216 construction of the regulations. In all respects, the case was no
different to cl 485.223.2 The clause provides that there should be an accompaniment of evidence.
That is the applicant and any person involved who must have attained the age of sixteen; should
have made an application for “Australian Federal Police” check at the period of twelve months
just prior to the date of application. At the time the application for visa was made the appellant
had already applied for the police check. But he answered no on the question asking if he had
applied to the federal police for criminal records in the last one year. The question was in the
visa application form.
1 Brian Opeskin. "Managing international migration in Australia: Human rights and the “last major redoubt
of unfettered national sovereignty” (2012) International migration review 46, no. 3, 551-585.
2 Walker David and Aly, Anne. "Veiled threats: Recurrent cultural anxieties in Australia." (2017) Journal of
Muslim Minority Affairs 27, no. 2, 203-214.

Surname 3
Rejection by the minister’s delate was based on the ground that it was not evident if he
had made an application for the check.3 The Federal Magistrate Court refused a relief holding
that clause 487.216 provide for prove of police check application at the visa application period.4
The judge took a stern perception of the word accompanied. The breadth of the view might
provide rise to challenges in deciding the extent to which a departure from the temporal
provision might be allowed. It could appear as if there is no necessity for concept stretching,
provided that there might be delay of the visa application up to the point that the applicant can
evidently show that he or she has made an application for the skills assessment. Nevertheless, if
there is no accompaniment of evidence to the visa application a withdrawal is possible. Hence a
fresh application can only be carried out when there is availability of such evidence.
In this case, there was no discretion on the tribunal’s part as whether to apply or not cl
485.223 criterion to the appellant.5 If the visa application is in company of the required evidence
might involve an assessment of evidence and does not involve discretion exercise. Therefore the
tribunal appropriately construed cl 485.223 and applied the requirement in the write manner to
the facts present before it. Having acted in that manner, there was lack of evidence on the
appellant’s part to convince the time that during application time the criterion had fulfilled.
3 Afrose Kabir, Nahid. Muslims in Australia (2014) Immigration, race relations and cultural history.
Routledge.
4 Matthew Groves, and H. P. Lee. Australian administrative law: (2017) Fundamentals, principles and doctrines.
Cambridge University Press.
5 Matthew Groves, and H. P. Lee. Australian administrative law (2017) Fundamentals, principles and doctrines.
Cambridge University Press.

Surname 4
The court was not biased at all at its decision as it followed the written law. Therefore, it
was lawful to dismiss the appeal and have the appellant pay the responds al costs for the appeal.6
It might be deemed that the law acted harshly to the appellant circumstances. However, this does
not give the appellant an opportunity to claim a jurisdictional error. His mistake lied in the fact
that he failed lodge an early application of a skills assessment due to reasons related to the
delayed completion of his studies. The law considers efficiency of the administration and the
necessity for visa applicant to take accountability of going through external processes of
assessment prior to lodging an application.7 Failure to apply to such procedure leads to an
express nullification of the visa application.
Breaches Conducted by Migration Agents who fail to Warn Applicants of Omission
All migration agents must be legally registered law practitioner (lawyers). Additionally,
the law require a migration agent be registered with (MARA) Migration Agents Registration
Authority.8 MARA prohibits migration agents from providing unprofessional poor advice to visa
applicants and unscrupulous practice. Registration of lawyers to the body makes sure that the
agents adhere to Mara code of conduct. It provides that migration agent should maintained
updated and sound awareness of migration law and procedures.
If an agent helps an applicant to lodge a visa application without warning them of the
implications of bypassing prior procedures such application for police check or skills assessment,
6 Walker David, Aly, Anne. "Veiled threats: Recurrent cultural anxieties in Australia." (2017) Journal of
Muslim Minority Affairs 27, no. 2 203-214.
7 Joanne Kinslor. "Non-refoulement and torture: the adequacy of Australia's laws and practices in
safeguarding asylum-seekers from torture." (2010) Australian Journal of Human Rights 6, no. 2 161-179.
8 Irene Khan. "Trading in Human Misery: A Human Rights Perspective on the Tampa Incident." (2013)
Pac. Rim L. & Pol'y J. 12 9.

Surname 5
the agent breaches code of conduct.9 The agent can be helping his or her clients to apply for visas
with fabricate410d claims for his or her (agent’s) financial gain. MARA is entitle to peruse over
the agent’s departmental, tribunal, and client files to evaluate their practice. The evaluation
particularly targets to determine if the agent has breached code of conduct. If found to act in that
manner the agent is accused of including inaccurate and misleading statements to facilitate
success prospects of visa application.10 The accuse fails to offer candid and frank advice/warning
to applicants on the prospect of application success.
With such evidence MARA is sure of the agent’s breach of provisions of the code of
conduct. He is ruled as a person of less of integrity and unfit and improper individual to provide
immigration assistance.11 The agent faces a penalty for cancellation of his or her registration for
five or more years.
9 Irene, Khan. "Trading in Human Misery: A Human Rights Perspective on the Tampa Incident." (2013)
Pac. Rim L. & Pol'y J. 12 9.
10 Matthew Groves, and H. P. Lee. Australian administrative law (2017) Fundamentals, principles and doctrines.
Cambridge University Press.
11 Joanne Kinslor. "Non-refoulement and torture: the adequacy of Australia's laws and practices in
safeguarding asylum-seekers from torture." Australian Journal of Human Rights 6, no. 2 (2000): 161-179.

Surname 6
Bibliography
Statutes
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Case Laws
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 113 S. Ct. 2549, 125 L. Ed. 2d 128 (1993).
Wednesbury Case, 1948 K.B.1 223 (1948).
Articles
Goodwin-Gill, Guy S., and Jane McAdam. The refugee in international law. Oxford University
Press, 2017.
Khan, Kamran, M. Mustafa Hirji, Jennifer Miniota, Wei Hu, Jun Wang, Michael Gardam,
Sameer Rawal et al. "Domestic impact of tuberculosis screening among new immigrants
to Ontario, Canada." Canadian Medical Association Journal (2015): cmaj-150011.
Hawkins, Freda. Canada and immigration: Public policy and public concern. McGill-Queen's
Press-MQUP, 2018.
Aly, Anne, and David Walker. "Veiled threats: Recurrent cultural anxieties in Australia."
Journal of Muslim Minority Affairs 27, no. 2 (2017): 203-214.
Kabir, Nahid Afrose. Muslims in Australia: Immigration, race relations and cultural history.
Routledge, 2014.
Khan, Irene. "Trading in Human Misery: A Human Rights Perspective on the Tampa Incident."
Pac. Rim L. & Pol'y J. 12 (2013): 9.

Surname 7
Opeskin, Brian. "Managing international migration in Australia: Human rights and the “last
major redoubt of unfettered national sovereignty”." International migration review 46,
no. 3 (2012): 551-585.
McMillan, John. "Federal Court v Minister for Immigration [This article builds on a submission
made to the Senate Legal and Constitutional References Committee into the operation of
Australia's refugee and humanitarian program]." In AIAL Forum, no. 22, p. 1. Australian
Institute of Administrative Law, 2009.
Martin, Greg. "Stop the boats! Moral panic in Australia over asylum seekers." Continuum 29, no.
3 (2015): 304-322.
Poynting, Scott, and Victoria Mason. "The resistible rise of Islamophobia: Anti-Muslim racism
in the UK and Australia before 11 September 2001." Journal of sociology 43, no. 1
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Groves, Matthew, and H. P. Lee. Australian administrative law: Fundamentals, principles and
doctrines. Cambridge University Press, 2017.
Berkeley, Rob, Omar Khan, and Mohan Ambikaipaker. What's new about new immigrants in
twenty-first century Britain?. York: Joseph Rowntree Foundation, 2016.
Kinslor, Joanne. "Non-refoulement and torture: the adequacy of Australia's laws and practices in
safeguarding asylum-seekers from torture." Australian Journal of Human Rights 6, no. 2
(2000): 161-179.
Willey, Stephen. "The merits of merit-based planning appeals: observations from Australia."
International planning studies 9, no. 4 (2014): 261-281.