Migration Law

This document discusses the provisions of the Migration Act 1958 and its implications in different scenarios. It covers the conditions for different types of visas and their requirements. The scenarios include the application of section 48 bar, eligibility for Aged Parent (Residence) visa, and the consequences of overstaying a visitor visa.

Running head: MIGRATION LAW
MIGRATION LAW
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Scenario 1
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Section 48 of the Migration Act 1958 provides in the situation where an applicant had got
his visa refused or cancelled in Australia leading to the implication of section 48 bar. This bar
automatically applies to people whose visa had got cancelled or had made an application of visa
that has been refused. In this situations, the bar of section 48 remains with such person as long as
he stays in Australia. The limitation of section 48 was created in order to prevent people from
making several visa applications repetitively.
The bar of section 48 applies to the person when he is in Australia, not holding any
substantive visa and his application for substantive visa has been refused or cancelled. Once
section 48 becomes applicable, one is barred from applying for another substantive visa as long
as he continues staying in the country.
The bar of section 48 does not apply when the visa application is being refused on failure
to comply with the valid application criteria like correct visa application charge is not paid. It

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does not apply when one is holding a substantive visa. Substantive visa is any visa other than
criminal justice visa, enforcement visa or bridging visa. The criminal justice visa or the
enforcement visa are the visas that are granted to individuals when they are suspected of
committing a crime. These are given when such individual to be arrested and taken into custody
or they are awaiting trial in the country. Bridging visas are common type of visas they allow an
individual to remain in Australia after he has applied for the substantive kind of visa while the
government processes the visa application. The substantive visa is any regular visa that
comprises of tourist visa, partner visa, working visa and student visa.
In the given situation of Yan Ming, section 48 of the act apples as she was not holding a
substantive visa and her application for 482 visa was refused. Since she was holding a bridging
class A visa, she can apply for partner visa as her partner was an permanent Australian Citizen
and was ready to sponsor him. Now if 8503 condition is applicable to Yan, that is has a ‘no
further stay’ condition imposed on it they she can not apply for a substantive visa except for a
protection visa. It is even available even if the visa which had the condition does not exist
anymore.
Scenario 2
Aged Parent (Residence) (Class BP) is a similar type of visa like Parent Sub class
103 visa and is suitable for applicants who are eligible for the Australia age pension
(Immi.homeaffairs.gov.au, 2019). With this visa, one can stay in Australia permanently as a
resident and also apply for Australian citizenship. One can also sponsor eligible family members
to come to stay and stay in Australia. The main criteria for this type of visa are as follows.

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Firstly, the applicant must be in Australia and not under immigration clearance when she
is applying for the visa and when such application is being considered. Secondly, the applicant
must have an eligible child who is a settled citizen of Australia, permanent resident or eligible
citizen of New Zealand. The final condition is that the applicant must be old enough to receive
the pension in Australia.
With is visa, besides staying in Australia permanently, one can work and study in
Australia, can get subsidized scheme healthcare through Medicare and the Pharmaceutical
Benefits Scheme (PBS) and can have access to specific social security payments.
In the light of above discussion, Rose can easily apply for 804 Aged Parent (Residence)
as the conditions for applying it is satisfied. But the main problem in this case is that Rose’s visa
has the condition of 8503 in it. The condition 8503 means Rose is not eligible to apply for
another visa onshore apart from a protection visa or a temporary visa. Such condition continues
to apply unless it is waived or unless she leaves Australia. Hence, in order to stay in Australia
permanently, Rose has to apply for the Aged Visa after waiving the condition of 8503.
In order to waive to e8503 condition, Rose had to show that since the time she was given
the visitor visa she was under compelling and compassionate circumstances on which she had no
physical control and that circumstances had caused a drastic change in the circumstances.
The compelling and compassionate situations that can help to waive the condition of
8503 must be beyond one’s control and need to occur since the time visa to which condition of
8503 applies was granted. There are few examples of such compassionate and compelling
circumstances that the Department of Immigration may consider which are as follows. First is
unfitness to travel, second being death or serious illness of a close member of the family, next is

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natural disaster in the native country and fourth being war or serious civil unrest in the
homeland. These examples are not exhaustive; the Department of Ministry may consider any
other situation that it may consider to be compassionate and compelling in its discretion.
A perusal of the above discussion, provisions of the said act and the present case
scenario, it can be said that Rose can raise the second example along with first one mainly.
Rose’s husband has died 18 months ago and hence she felt lonely and less secured alone
in UK. Secondly she can show the medical condition of Petrina, Philip’s youngest daughter who
was diagnosed with acute juvenile diabetes. Petrina requires constant monitoring, supervision
and care. Philip has three other children to take care of and hence he was not able to take proper
care of Petrina. So he needed her mother Rose to look after his daughter. She can prove the
compelling plus compassionate situations by showing the death certificate of her husband and
the medical bills, prescriptions and reports of Petrina.
Thus while applying Rose must consider providing all those required documents along
with the application of waiver to the Department of Ministry in order to convince them to waive
her 8503 condition.
Scenario 3
Visitor subclass 600 visa is a visa stream that allows people to come and visit the family
members. Such visa is valid for 12 months. The main conditions to apply for this visa are that the
applicant must be sponsored by a family member and he has the intention to visit Australia as a
visitor only (Treasury.gov.au, 2019). With this visa, the applicant can visit family and friends
staying in Australia, can cruise or have a holiday and can study or train for a period of 3 months.

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In the present case, it is seen that the visa of Sam had expired in July 2018 and he was
caught on October 2018, it means that Sam had spent more than 28 days in Australia after his
visa has expired. Hence he will be subjected to exclusion period according to the provisions
section 189 of Migration Act 1958 and the Migration Regulations 1994.
It means that Sam will not be granted with any visa to travel or to stay in Australia for a
minimum period of three years. This is given in Schedules 4 and 5 of the Migration Regulations
which state various periods for which people is deported or removed from Australia and are
banned to return to the country. Moreover, after the expiry of this exclusion period, he will not
be given another visa unless Sam repaid any debts he owed to the Commonwealth Government.
Such repayment will include the costs of detaining and also removing Sam. When the
Commonwealth makes arrangement for a person to be removed or deported to be conveyed to
any place out of Australia, that person is required to pay same amount of the passage money
incurred by the Commonwealth to it, according to section 210 of the said act. Hence for three
years, Sam cannot visit and stay in Australia as he will not be granted any visa in this time span
plus he will have to pay the Government the cost of detention and removal.
However Sam can apply for carer visa of sub class 836/116 to take care of his girlfriend
Kylie (Archive.homeaffairs.gov.au, 2019). She suffers from anxiety depression and after he was
removed from the country she has experienced severe depression. So she needs Sam to look after
and take care of her.
Sam can get a permanent carer visa under sub class 836/ 116 if he is able to prove that
Kylie is a member of the family unit living in the same household and she has been suffering
with such anxiety depression since long time. Moreover, Kylie must got her medical situation

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diagnosed and treated by Bupa Medical Visa Services. He has to show that there is no one to
take her care in Australia. Sam must also show that Kylie is ready to give sponsor her and he on
the other hand ready to provide support and assistance. Other than this, Sam must meet the
required health criteria as specified.

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References:
Archive.homeaffairs.gov.au. (2019). Carer visa (subclass 836). [online] Available at:
https://archive.homeaffairs.gov.au/trav/visa-1/836- [Accessed 9 Apr. 2019]
Immi.homeaffairs.gov.au. (2019). [online] Available at:
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/aged-parent-804 [Accessed 9
Apr. 2019]
The Migration Act 1958
The Migration Regulations 1994
Treasury.gov.au. (2019). [online] Available at: https://treasury.gov.au/sites/default/files/2019-
03/LCA_Business_Law_Section2part2.pdf [Accessed 7 Apr. 2019]