Reasons to Consider Before Refusal of Contributory Parent Visa Application

This document discusses the reasons that should be considered before refusing a Contributory Parent visa application. It explores the character grounds specified in the Migration Act 1958 and provides arguments in favor of accepting the application. The document also highlights the obligations of registered migration agents in relation to conduct and advice.

MIGRATION LAW
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Table of Contents
Question 1..................................................................................................................................3
Additional Evidence to be provided by Chatura and Asheni.................................................4
Question 2..................................................................................................................................5
Question 3..................................................................................................................................5
Bibliography...............................................................................................................................8
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Question 1
To,
The Minister
Present submission has been brought to you to discuss the reasons which should be
considered before refusal of Contributory Parent visa application of Chatura and Asheni for
which letter has been received by them from the Department of Home Affairs. The letter
specifies the intention of refusing their visitor visa under section 501 (1) and (2) on character
grounds for Chatura and under section 140 (1) consequential cancellation for Asheni.
The provision specified in section 501 (1) of Migration Act 1958 asserts that the minister
might cancel the application of visa relating to an individual in case the person does not
satisfy the Minister that particular individual passes the character test. An individual fails the
character test in following scenarios:
 In case the individual have a substantial criminal record.
 The person has been convicted or runoff from immigration detention.
 The individual is having or had association with a person involved in criminal
conduct1.
 The person is subject to negative assessment by ASIO.
The most common case of failure of character test is having substantial criminal record. In
present case also as Chatura was imprisoned for eleven months when he was 18 years old for
causing serious injury to his girlfriend. Due to specified act, he does have a substantial
criminal record and appropriately failed in character test as per provision of section 501 (1) of
Migration Act 1958. Further, as her wife is having association with a person who has
substantial criminal record; her visa application has been also cancelled on the basis of
provision specified in section 140 (1) of the act.
However, Chatura had completed six month anger management course after the incident in
order to control his anger and not to repeat this kind of behaviour in future. Although, the
1 Visa cancellations under section 501 (character grounds). (13th March 2019).Legal Services
Commission of South Australia < https://lawhandbook.sa.gov.au/ch24s01s07s01.php>
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visa has been refused on appropriate basis, the reason which should be considered before
refusal of application is as follows:
 The incident had taken place a long time ago and the report of psychiatrist specified
that Chatura was out of character at that time and is confident that same behaviour
will not be repeated in future. Further, it should be considered that no such conduct
has been repeated after that incident.
 The condition of grandson of Chatura is very serious and as per the facts Dinesh
(Chatura ‘son) financial condition is not good. Further he is not able to afford private
nurse in order to take care of his son. It can be accessed from medical report that
condition of Chatura’s grandson is very serious and he requires care as well as
financial support, thus possible assistance should be provided by authority.
 As Chatura’s son has made every attempt to take government assistance for support
and failed at every level. Thus, his parents are the last hope from which he can get
help and the same should be considered by you.
In accordance with provisions specified in section 54 of Migration Act 1958 the above
discussed facts and analysis should be considered before cancelling or refusing visa
application of Chatura and Asheni. Further, it is requested to the minister to consider above
specified reason and accept the visa application so that Chatura and Asheni could take care of
their grandson and could provide needed support to their child Dinesh.
Date:
Signature:
Migration Agent
Additional Evidence to be provided by Chatura and Asheni
In present case Chatura should provide certificate relating to anger management course
completed by him. The same will assist is proving his attempts to change his character.
Further, medical reports of his grandson and application submitted by his son to the
government for their help should be attached in order to prove that all other available
alternatives have been tried but no success has been attained in same. Police clearance
certificate would act as substantial evidence proving the present character of Chatura and
making authorities assure that he has changed now.
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Question 2
Section 48 of Migration Act 1958 asserts that an individual can apply for another visa who
has attained refusal or cancellation relating to visa application, only in case the specified
refusal is not relating to section 501, 501 A or 501 B of specified act2. The specified sections
provide provisions relating to accomplishment of character test which asserts that in order to
pass the test it is necessary that the applicant should have no substantial criminal record as
well as the same is having good behaviour3. Further, subsection (1 A) of Migration Act 1958
asserts that a non-citizen who does not hold substantive visa and whose application visa has
not been refused on the grounds of failure test under section 501, 501 A or 501 B can file
application for visa relating to purpose specified in above section.
It can be concluded that as visa application of Chatura and Asheni has been refused on the
grounds of failure of character test specified in section 501 of Migration Act 1958, thus they
cannot apply for any other available visa.
Question 3
The contributory parent visa provides permission to parents to stay in Australia for indefinite
period. In order to attain specified visa it is necessary to have a child who is Australian
citizen or a permanent resident. In present case, the probability of success relating to response
letter provided to minister in relation to potential section 501 refusal is significant. The
reason behind same is that no criminal offence has been conducted by Chatura after the
incident in which he seriously injured his girlfriend. Further, his son needed his support to
extreme extent. Thus, these facts will be considered by the authority and acceptance will be
provided to visa application of Chatura and Asheni.
The obligations of registered migration regarding specified conduct are as follows:
2 MIGRATION ACT 1958 - SECT 501. Refusal or cancellation of visa on character grounds.
(13th March 2019). Common wealth Consolidation Regulations. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
3 Administrative Decision-Making in Australian Migration Law. (13th March 2019).
Australian National University.< http://press-files.anu.edu.au/>
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 In accordance with Part 2 of Standards of professional conduct, subpart 2.1; a
registered migration agent is required to conduct required operations in accordance
with provision specified in law. In case the agent operates in country other than
Australia, than same is required to follow statue of that country. He is required to
make all his operation in diligently, competently and fair manner4.
 Further clause 2.3 states that an agent is required to act in professional manner
through sound working knowledge of Migration Act and Migration Regulations along
with other legislation related to migration procedure5. He is required to provide
appropriate advice within time.
 In case a client asks migration agent his opinion relating to probability of successful
result of visa application provided by him than as per clause 2.7 of schedule of code
of conduct agent is required to give the advice in writing within appropriate time. He
can also provide the same orally to the extent the specified advice is same as provided
in written form. In any situation, an agent is not required to hold out unsubstantiated
or misleading prospects of success while specifying probability of success on visa
application under Migration Act or Migration Regulations. In present case the agent is
required to specify appropriate advice to Chatura and Asheni as per above specified
clause6.
 In accordance with clause 2.14, a registered migration agent should not represent
registration as involved a special or honoured relationship with minister or other
authorities of the department. It comprises advantage relating to attainment of priority
processing or indication that agent is part of processing for the department.
 An agent should not intimidate or force any person for attainment of any self
advantage or otherwise. The clause is inclusive of acts which are relating to undue
pressure, physical threats, and untruthful claims relating to Departmental sanctions,
4 Migration Act 1958
5 Migration Agents Regulations 1998
6 Migration Agents Regulations 1998. (13th March 2019). Federal Register of Legislation. <
https://www.legislation.gov.au/Details/F2017C00943>.
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discrimination on the basis of religion, nationality, race, ethnicity or any other
grounds7.
 In case it has been assessed by migration agent that the visa application is grossly
unfounded (i.e. the probability of success is equal to zero), than agent should not
encourage the client for lodging the application. Further, advice should be given in
writing that the provided visa application is grossly unfounded and in case of
continuing the lodging procedure written acknowledgement should be attained from
the client8.
 It has been specified in clause 2.20 of code of conduct that an agent is required to
ascertain appropriate amount of visa application fee and other required charges to be
paid by client as per Migration Act or Migration Regulation. In case the agent is
required to pay any amount on behalf of client than he should attain a written advice
of client with date by which the agent is allowed to give the required amount. The
same will provide assurance that interests of client are not prejudiced9.
7 MIGRATION AGENTS REGULATIONS 1998 - SCHEDULE 2. (13th March 2019). Common
wealth Consolidation Regulations. <
http://classic.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>
8 Code of Conduct for registered migration agents. (13th March 2019). Australian
Government. Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
9 Migration Regulations 1994
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Bibliography
Administrative Decision-Making in Australian Migration Law. (13th March 2019). Australian
National University.< http://press-files.anu.edu.au/>
Code of Conduct for registered migration agents. (13th March 2019). Australian Government.
Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
MIGRATION AGENTS REGULATIONS 1998 - SCHEDULE 2. (13th March 2019). Common
wealth Consolidation Regulations. <
http://classic.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>
MIGRATION ACT 1958 - SECT 501. Refusal or cancellation of visa on character grounds.
(13th March 2019). Common wealth Consolidation Regulations. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
Visa cancellations under section 501 (character grounds). (13th March 2019).Legal Services
Commission of South Australia < https://lawhandbook.sa.gov.au/ch24s01s07s01.php>
Migration Agents Regulations 1998. (13th March 2019). Federal Register of Legislation. <
https://www.legislation.gov.au/Details/F2017C00943>.
Legislation
Migration Act 1958
Migration Regulations 1994
Migration Agents Regulations 1998
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