Migration Law Assignment (doc)

Running head: PARDEEP KAUR s4633378
1
Migration Law

PARDEEP KAUR s4633378 2
The implications of the decision of Le v Minister for Immigration [2019] FCCA 2167 (12
August 2019) in the case provided
A Partner (Subclass 820 and 801) visa allows one's spouse or de facto partner to come to
Australia and reside with you. This requires that the person already staying in Australia should
be a permanent resident, an Australian citizen or an eligible New Zealand resident. One must
consider whether they are applying onshore or off-shore visa in Australia. This is usually
important as it determines which sub-class one should ask for. In either of these cases, one must
have a temporary or provisional visa before a permanent visa is granted. In the evidence
presented in this paper, it's an onshore visa that needs to be applied; this implies that the person
is already in Australia. Assuming that they can apply for this visa, then the wife can potentially
stay in Australia until the decision regarding the 820 visas is made.
The 1case Le v Minister or immigration has numerous implications on this case because
just like in the Le's case there is a condition 8503 on the current visitor visa. Moreover, in both
cases, there is an application of the onshore visa in Australia.
First and foremost, the application of the partner visa may be deemed invalid concerning
section 46(1A) of migration Act. A visa application is invalid if the applicant is already in the
migration area, and if after getting into Australia, the applicant previously held a visa. In such a
case, these persons will not be entitled to any other substantive permission. Exceptions only arise
in cases of protection or temporary visas. Moreover, condition 8503 provides that, the 8503
1 Grewcock, Michael. "Reinventing ‘the stain’: Bad character and criminal deportation in
contemporary Australia." In The Routledge handbook on crime and international migration, pp.
151-168. Routledge, 2017.

PARDEEP KAUR s4633378 3
holders after entering Australia will not be entitled to a substantive visa other than the protection
visa as long as they already reside in Australia. In regard, the application of the partner visa may
be deemed invalid by the relevant authorities because they do not fully meet some of the
conditions as specified in section 46(1A) of the Act. This is so because the wife, despite being
three months pregnant, already entered Australia with a visa subject to condition 8503 "No
further stay|". Since her permission is subject to this condition, there is only a limited class of
Visas that they can apply for not unless the situation is waived.2 It is important to note that
according to Australian immigration laws, invalid applications cannot be considered under any
circumstances whatsoever. The application will not be accepted and as such would not be
assessed against the visa criteria for grant or refusal.3
According to Australian regulations, a permanent or partner visa may be granted in such
a case if an application is made to waive the condition 8503 on the already existing clients'
visitor visa. According to subsection 41(2A) of the act, there are circumstances under which the
minister may waive condition 8503. These 4conditions are; since one was granted a visa subject
to such terms, compelling cases have developed. The person in question should have no control
2 Hirsch, Asher Lazarus. "The borders beyond the border: Australia’s extraterritorial migration
controls." Refugee Survey Quarterly 36, no. 3 (2017): 48-80.
3 Hoang, Khanh. "Migration law: Of secrecy and enforcement: Australian border force act." LSJ:
Law Society of NSW Journal 14 (2015): 78.
4 Horner, Jed. "Widening the net or streamlining the process? Migrant health screening and
securitisation in Australia and beyond." Critical Studies on Security 3, no. 1 (2015): 118-121.