Migration Law

This document provides detailed information on Migration Law, specifically focusing on the character test and its impact on visa applications. It discusses the reasons for the refusal of a Contributory Parent Visa and the two-stage decision-making process. It also highlights the obligations of a migration agent and provides additional evidence that can support a visa application. Finally, it explains the concept of a contributory parent visa and its eligibility criteria.

MIGRATION LAW
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Table of Contents
Answer 1....................................................................................................................................3
Concise submission to the minister........................................................................................3
Additional Evidence...............................................................................................................6
Answer 2....................................................................................................................................6
Answer 3....................................................................................................................................7
Bibliography.............................................................................................................................12
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Answer 1
Concise submission to the minister
To
The Minister
Issue: Present submission is regarding explanation of reasons due to which Contributory
Parent (subclass 864) visa application of Chatura and Asheni should not be refused under s.
501.
Section 501 of the Migration Act asserts that the person does not clear the character test in
case the applicant fall under of the grounds which have been specified in subsection 501 (6)
(a) to (d). The specified grounds have been provided below:
 Association with person who are under suspicion for being related with criminal
conduct.
 Significant risk relating to specific type of future conduct.
 Present or past criminal along with general conduct.
 Significant criminal record.
 Conviction for immigration custody offence1.
1 Refusal or cancellation of visa on character grounds. Migration Act 1958 – Sect 501. 25th
Feburary 2019. Commomwealth Consolidation Acts. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
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In present case as Chatura has been sentenced for 11 months due to causing serious harm to
his girlfriend when he was 18 years old. However, he has also provided the psychiatric report
relating to his mental state while he committed the crime. Along with same he also presented
the certificate of psychiatric in which it was stated that the specified kind of conduct will not
repeated. Further, he has also joined six month anger management program even though it
was not part of the condition for his release from prison.
It can be accessed from above assertion that Chatura visa application has been appropriately
refused on the grounds of section 501of Migration Act. As, he is having past criminal record
due to which he failed required character test. Further, Asheni application has been rejected
on the basis that she is in association of a person who is having criminal record.
In this situation the two stage decision making process can be applied in order to assess
whether the visa application should be cancelled or not as per section 501 of migration act2.
In first stage, the minister is required to consider that whether the applicant has cleared the
character test which has been specified in subsection 501(6) of the act. Further, in case the
authority is assure that the threshold test specified under section 501 (1), (2) or (3) relating to
refusal has been has been met than the second stage of decision making process is triggered
under section 501. In this stage, appropriate authority makes decision in order to apply their
discretion power for refusing or cancelling the visa of applicant. The second stage can be
applied by the authority in order to not to cancel the visa on the basis of following reasons:
 Chatura was sentenced when he was 18 years for the conduct due to which he harmed
his girlfriend because she cheated on him. However, he has provided psychiatric
2 Administrative Decision-Making in Australian Migration Law. 25th February 2019.
Australian National University.< http://press-files.anu.edu.au/>
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certificate which specifies that this kind of behavior will not be repeated. Moreover,
he has also joined anger management course on his own choice which signifies that he
himself wants to improve.
 Presently, his son needs their support as Rupesh (Chatura Grandson) has various
seizures throughout the day and night from having cord around his neck while he was
born. Thus, the actual condition should be assessed that his son is not financially able
to provide assistance of private providers in order to look after his son. Thus,
authority should consider the painful condition of Dinesh regarding the issues
presently faced by him.
 No criminal offence or general offence has been conducted by Chatura after he has
been released from the prison. Thus, the change in character should also be
considered prior taking decision relating to cancellation of Contributory Parent Visa.
As section 54 of the Migration act requires considering all the information relating to the
applicant while making decision of visa application3. Further, medical examination can also
be conducted in case required as per the assessment of Minister or appropriate authority.
Thus, authority or Minister can accept the visa application on the basis of above reasons.
Further, medical examination can be done by the authority in order to be assured regarding
the character of Chatura.
Date:
Migration Officer.
3 Migration Act 1958
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Additional Evidence
Chatura and Asheni can submit the certificate of six month anger management course
completed by Chatura for proving clear character. Further, the medical certificate relating to
Chatura’s grandson can be provided to prove the actual his actual medical condition. Police
clearance document could also support the case and provide assistance in attainment of
approval of visa application. Form 80 could also be attached which specifies particular of
assessment comprising character assessment in case the same has not already provided.
Police certification is to be provided for every country where the individual have lived in.
The requirement is applied on the applicant has lived in any country in which he or she is
having age over sixteen years and lived in specified listed country for at least 12 month in
past ten years. Further as the certification is valid for twelve month from the date of issue,
thus same is required to be complied by the applicant.
Answer 2
In accordance with section 48 of Migration Act 1958, a non-citizen whose visa application
has been cancelled or refused can apply for particular visa only in following cases:
 Non-citizen is not having substantive visa
 The visa has been refused or cancelled other than refusal relating to bridging visa or
refusal visa which is relating to section 501, 501 A or 501 B of Migration act for
which application has been provided by the applicant4. The same is related to
fulfillment of requirement of character test. In order to accomplish the requirements
of character test it is necessary to present that the applicant has no substantial criminal
record as well as good general behavior.
4 MIGRATION ACT 1958 - SECT 48
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 It has been specified that visa application was refused or cancelled as per provision of
section 109 (incorrect information), 116 (general power to refuse the application), 133
C (Minister’s authority to cancel or refuse the visa on the basis of specifications
provided in section 116), 134 (visa relating with business), 137 J (student visa) or 137
Q (visa relating to regional visa employment)
Thus, an applicant can apply for visa of a class which has been specified for the purpose of
this section but not for any other class. However, in present case application of Chatura and
Asheni has been refused on the basis of failure of character test due to which they cannot
apply for other visa which is available for above specified class.
Further subsection (1A) of section 48 of Migration Act 1958 specifies that a non-citizen in
migration zone who does not have substantive visa and whose visa have been refused or
cancelled on the basis of reason other than failure of character test under section 501, 501A
or 501 B as well as bridging visa for which application has been made on behalf of non
citizen might apply for visa of a class which has been specified for the purpose of this section
but not for any visa of other class.
Overall, it can be concluded that as visa application of Chatura and Asheni has been
cancelled (refused) on the grounds of section 501, thus they both cannot apply for any other
visa. Moreover, any other person can also not apply for visa on their behalf.
Answer 3
A contributory parent visa (subclass 864) is also referred as permanent visa which is also
known as permanent visa. The specified visa processed faster in comparison to other visa but
the same cost more in comparison to other visa of subclass 804. The specified visa allows the
parent to stay in Australia for indefinite period. In order to be eligible for applying for
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contributory parent visa it is necessary to have a child who is Australian citizen or a
permanent resident. The above specified conditions are complied in case of Chatura and
Asheni. The probability of success of response of agent to minister regarding potential s. 501
refusal does exist in significant manner. The reason behind same is that character of Chatura
has changed. Further, no misconduct has been done by him after that incident. Moreover, her
son is needful of their assistance, thus it is expected that minister will grant visa to them. The
obligations under code of conduct as a migration agent in this regard are as follows:
 As per Part 2 (standard of professional conduct) of Migration Act, a registered
migration agent is required to act in compliance with law and the legitimate interest of
client. Further he is required to operate the function regarding his service in
competently, diligently and fairly manner.
 A registered migration agent is required to take appropriate steps in order to improve
as well as sustain the latest versions of the Migration Act 1958 and Migration
Regulations 19945. Further, same is required to comply with other legislation relating
to migration procedure along with portfolio policies and procedures6.
 He is required to act in accordance with the instruction of client and confirm with the
same within reasonable time after accept the terms and information provided by the
client. It is necessary for the agent to keep client informed in writing process
regarding the case.
5 Migration Act 1958
6 Migration Agents Regulations 1998
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 Migration agent is not required to engage in false or misleading advertisement which
comprises information relating to agent’s registration and guaranteeing success of
application7.
 It is compulsory for the agent to provide true status of application of client and no to
provide any misleading or deceiving the client due to any reason.
 A registered agent should not represent that he or she can procure any specific
decision on the behalf of client under Migration Act or regulation8.
 A registered agent should not threaten or force any individual for the advantage of
agent or due to any other reason. The same comprises following act: undue pressure;
discrimination on the basis of nationality, race, gender, politics; manipulation of
cultural anxieties, false claims regarding sanction provided by authority, physical
threat etc9.
 It is necessary for migration agent to act in timely manner in case client provides
information and documentation in time required for statutory deadlines. For instance:
usually all scenarios require an application to be submitted before the visa of person
ceases to be in effect as per Migration Act or Migration Regulations10.
7 Jane McGrath,. "A path of devotion: Migration law and the art of specialising." Bulletin
(Law Society of South Australia) 39.1 (2017): 8.
8 Migration Agents Regulations 1998
9 Migration Regulations 1994
10 Code of Conduct for registered migration agents. (18th April 2017). Australian
Government. Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
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 A registered agent should not submit the application without accompanying
documentation. Further, he is required to notify the authority regarding the facts
relating to case known to him after submission application. He is also required to take
appropriate initiatives in order to sustain the image and integrity of migration advice
profession11.
 In case a registered migration agent has contracted with client on certain terms which
complies with the code, but the code is amended in such manner that it does not relate
with that specified terms of contract. In this situation agent is not responsible for
breach of code of conduct mere on the basis that the contract does not comply with
the amendment. Further, it is necessary for agent to make appropriate attempts to
assure that contract complies with the amended code.
 Migration agent is not allowed to represent registration as relating to a special or
privileged contact with Minister, officer relating to Department or Authority, for
instance: attainment of priority processing or the present that agent is part of
operations taken by the department whether partial or full.
Bibliography
Administrative Decision-Making in Australian Migration Law. (25th February 2019).
Australian National University.< http://press-files.anu.edu.au/>
11 Migration Agents Regulations 1998. (25th February 2019). Federal Register of Legislation.
< https://www.legislation.gov.au/Details/F2017C00943>.
Name:
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Code of Conduct for registered migration agents. (18th April 2017). Australian Government.
Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law
Society of South Australia) 39.1 (2017): 8.
Migration Agents Regulations 1998. (25th February 2019). Federal Register of Legislation. <
https://www.legislation.gov.au/Details/F2017C00943>.
MIGRATION ACT 1958 - SECT 48. (25th Feburary 2019). Commonwealth Consolidated
Acts. < http://www5.austlii.edu.au/au/legis/cth/consol_act/>
Refusal or cancellation of visa on character grounds. Migration Act 1958 – Sect 501. 25th
Feburary 2019. Commomwealth Consolidation Acts. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
Legislation
Migration Act 1958
Migration Regulations 1994
Migration Agents Regulations 1998
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