Abdul's Visa Application Case Study

This assignment involves a comprehensive analysis of Abdul's visa application, taking into account his 30-year-old conviction for bribery and his subsequent good work record. The report must consider relevant case laws and the Minister's discretion under Section 501 of the Migration Act 1958 (Cth). A comparative analysis with the United States is also required. The assignment is based on various case studies, books, journals, and online resources.

MIGRATION LAW

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
1. SUBMISSION OF ARGUMENT TO MINISTERS.........................................................1
2. SUGGESTING ALTERNATIVE VISAS THAT CAN BE APPLIED.............................3
3. OBLIGATIONS OF LEGAL ADVISOR UNDER CODE OF CONDUCT.....................4
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
Migration law deals with regulations regarding the rights to enter and remain in a
country. This provides provisions and rules applicable to person who holds citizenship of another
nation in respect of residential country. In the present case study of Abdul and Yasmin, validity
and eligibility of their visa application for living in Australia is evaluated with reference to
Migration Act, 1958 and Migration Regulation 1998. All the relevant section from both these
Act and Regulation will be applied in this case study to frame significant conclusion. Along with
this, references from different case laws by Australian court will also be considered.
MAIN BODY
1. Submission of argument to ministers
Section 501 of Migration Act, 1958: refusal and cancellation of Visa on character ground
of an individual-
This section lays down the condition on basis of which a visa application of a person with
citizenship of another nation can be denied by ministers (Hoang and Reich, 2017). The main
basis for refusal of visa application is failing in health and character test. As per this section a
character test is needed to be passes by a visa applicant. According to section 501(6),
requirement to pass this character test are:
 Applicant has a substantial criminal record
 He/she has been convicted for immigration detention offences.
 He/she has been in association of a person who is suspected to be engaged in criminal
conduct.
 He/she is a criminal in past or present time or have a general conduct of that.
 There is a risk associated with their future conduct related with particular type such as
repetition of such offence or crime in that country.
In the present case Abdul was found with a past criminal record. To check whether that offence
was substantial reference to section 501(7) is taken (McGrath, 2017). According to this section
substantial criminal record means
 life imprisonment or sentence to death.
 An imprisonment of 12 month or more.
 Sentence to jail is for more than two times and total of these two terms is two years or
more.
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In the present case Abdul was convicted for imprisonment for 2 years but was released in
1.5 years because of his good conduct. He was jailed under an offence of corruption as he paid a
sum of money to public servant in order to secure government contracts from them (Moss,
2017). There was no physical harm to any person under this offence committed by Abdul.
Direction number 55 under Migration Act,1958:
The ministers before making a decision over refusal of visa application of Abdul must take in to
consideration provision stated under direction No. 55:
Part A (Primary consideration): following consideration must be taken into account:
 the protection of Australian community from criminal conduct
 in Australia, the best interest of minor children
 whether an obligation of internation non-refoulement is owed to that person.
Part B (Secondary consideration): this includes the impact on refusal on
 immediate family of that person
 business interest in Australia
 Australian community member
Administrative Appeal Tribunal: Migration Amendment Bill 2017, provides a right to
individuals whose application of visa was refused or cancelled under section 501. the right was
given as to seek judicial review of visa decision given by ministers.
Case laws:
AEG15 v Minister for Immigration and Border Protection
It was decided in this case that proceeding of a case must be carried in accordance with
law and respondent is liable to pay cost of applicant as agreed or as tax (Federal Court of
Australia, 2018). Further it was deleted that decision of FCC cannot be held as a proper
application of law has not been done in present case.
Federal circuit code:
CPF15 v Minister for immigration and border Protection
In this case visa application was dismissed by FCC for review by Administrative appeal tribunal
for visa application of a couple living in Australia. They first entered in Australia from Nepal on
student visa. It was held that as per migration Act, an appeal against judgement of FCC can be
made as appeal and applicant shall be given proper opportunity of being heard before rejection of
visa application.
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Conclusion:
With reference to above Direction no 55 stated under section 501 of Migration law, the
ministers before refusing the Visa application of Abdul on basis of his criminal record in
Malaysia, shall take into consideration all relevant facts related with this case. Abdul was
convicted for giving bribe 30 years back from now for 2 years (Billings, 2018). But he released
in 1.5 year because of his good conduct. From that time, till now Abdul have done different
social works for betterment of society, some of his social works are- he had established many
charitable foundations in Malaysia and Singapore which includes a refugee camp for women and
donation of generous amount from profit of business to hospitals in Kuala Lumpur.
According to Section 501 ministers have a legal basis to refuse visa application of Abdul
but with references to direction 55 of this act visa shall be granted to him. Visa is applied for by
Abdul for taking care of his minor sick grandchild who is totally dependent and is closely
attached to his grandparents. This fact also cannot be denied that offence committed by Abdul
was not severe in nature and he isn't coming to Australia for business purpose. Along with this,
facts related with his social work done for betterment of society must be taken into account to
judge his character. The couple wants to come here so that he and his wife can take care of their
grandchild. Yasmin does not have any criminal record neither she was aware of the fact of
conviction of her husband.
In present case their application must not be rejected by minister’s immigration
department. Mere a conviction of 1.5 year before 30 years can be considered as rational base to
judge character of Abdul. For this social work done and criminal recodes both must have taken
into account for whole of his life. This is very clear that in this case that Abdul was convicted
only for once in his lifetime and apart from that he does a lot of social work in his country.
On the basis of above discussion this applicant shall not be refused by Ministers and they
shall be granted contributory Parent Visa. In case their application is refused they can seek
review of discretion of minsters under AAT mentioned above.
2. Suggesting alternative visas that can be applied
Alternative visas which Abdul and Yasmin can apply for are:
Family Visa: For this vis applicant need to share relationship with an Australian or
permanent resident. The person applying for visa must follow whole procedure for taking a visa
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and cannot directly reside in Australia on basis of that relationship. Relationship covered under
this visa are:
partner [spouse or prospective partner], dependent children, adopted children, parent and orphan
relative.
Abdul and Yasmin can apply for family visa under the relation sip of parent as their
children have a citizenship of Australia. The information about this relationship can be taken
from Department of Home affairs.
Visitors visa: another visa that can be applied by Abdul and Yasmin is visitor’s visa but
this a temporary visa for a time period of 3 to 6 months. The purpose of this visa is travelling,
recreational activities, medical treatment and family visits (Hoang, 2018). Though have been to
Australia before on this visa and in case their visa application under contributory parent is
refused they have an option to apply under this visa.
Bridging visa: this is a temporary visa that can be given to person to remain in Australia
for a particular time period. This visa is granted to a person where he/she has already applied for
another visa and waiting for an outcome/ appeal decision/ to be made by ministers under
immigration and border protection Department.
From all above three visas the most suitable visa which can be applied by Abdul and
Yasmin is Bridging Visa. In case of refusal of their visa application they can seek review of
discretion of minister's refusal under Administrative Appeal tribunal and meanwhile they can
live in Australia for taking care of Heather their grandchild suffering from severe down
syndrome.
In case where there is no scope of reviewing the decision or cancellation of application with no
further chance to appeal Abdul and Yasmin can apply under parent visa (Donnelly, 2017). The
procedure to get parent visa is very lengthy and time taking and they do not have time to wait for
longer time.
3. Obligations of legal advisor under code of conduct
The guidelines for a migration agents are given under Code of Conduct for registered
Migration Agents by department of Immigration and Border protection formed by Australian
government. These are set out in Section 314 of Migration Act,1958. In migration Regulation
1998 it is prescribed in schedule 2, regulation 8.
Part 1: Introduction:
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 This regulated the conduct of a registered migration agent.
 The code is administrated by Migration Agents Registration Authority.
 Code is applicable to those who are registered under section 287 of Migration
Act,1958.
 The main aim of this code is,
- to establish standard for conduct of a registered migration agent with good character and
integrity.
- To work diligently and honestly for benefit of client.
 Establishment of prudent system for official administration.
 Accountability towards client.
 In case of a contract is in force with a client under this and there is an amendment
in code, for contract agent cannot be held liable for breach of code as contract do
not comply with new amended code (Code of Conduct, 2018). Importance and
significant steps be taken by agent in order to comply with amended code of
conduct.
 Any act by agent which is not in complication with code of conduct or agent falls
short of any requirement of code, registration of that agent is liable for
cancellation.
Part 2: Standards of processional conduct as registered migration agents must duties areas
follows –
 To act in accordance with the law and for legitimate interest of client.
 He must deal with clients with competently, diligently and fairly.
 In case there is a probability of conflict of interest, case of Abdul shall not be accepted as
a client.
 He must possess a sound working knowledge of Migration act and migration regulation.
 He must show professionalism through making of adequate arrangements to avoid
financial loses of Abdul.
 Proper and adequate updates on acts and regulation must be possessed in order to have
complete information and knowledge of act and regulation.
Part 3: Obligation to client
 As agent must prevent confidentiality of Abdul and Yasmin.
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 He must not disclose confidential information of client without their assent.
 The agent must provide a copy of consumer guide to Abdul and Yasmin and keep a
record, that copy have been provided.
 They must keep complete record related with Abdul and Yasmin such as address and
telephone number.
 The agent must provide his communication details to Abdul and in case there is a change
in such details, information shall be given to client prior to or within 14 days of such
change.
 To provide them a complete information about section 501.
 Keep them updated about any procedural requirement.
With this it can be stated that the response made by registered migrant agent for not
refusing application of Abdul and Yasmin involves all points mentioned above in code of
conduct. While formulation of reply to minsters for providing reason against section 501
complete care has been taken and full disclosures are made to client. There is a full probability
that visa application will not be refused and they will be granted visa to live in Australia.
CONCLUSION
In the above case study of migration Application of Abdul and Yasmin it is concluded
that application of Abdul for Visa cannot be denied on the ground of his conviction for bribery
which was 30 years back. Ministers shall take into account the good works which were
undertaken by Abdul after his conviction in period of 30 years and moreover that was the first
and last time he was convicted for any crime. After which there was no criminal record of Abdul.
This conclusion is made after taking into account certain case laws which are judged under FCC
and AAT. A resisted migration agent is bound by certain obligation and duties which are
specified in the above report.
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REFERENCES
Books and Journals
Billings, P., 2018. Regulating crimmigrants through the ‘character test’: exploring the
consequences of mandatory visa cancellation for the fundamental rights of non-citizens in
Australia. Crime, Law and Social Change. pp.1-23.
Donnelly, J., 2017. Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A
Threat to Rule of Law Values. Victoria UL & Just. J., 7. p.94.
Hoang, K. and Reich, S., 2017. Managing crime through migration law in Australia and the
United States: a comparative analysis. Comparative migration studies. 5(1). p.12.
Hoang, K., 2018. The Rise of Crimmigration in Australia: Importing Laws and Exporting Lives.
In The Palgrave Handbook of Criminology and the Global South. (pp. 797-817). Palgrave
Macmillan, Cham.
McGrath, J., 2017. A path of devotion: Migration law and the art of specialising. Bulletin (Law
Society of South Australia). 39(1). p.8.
Moss, A., 2017. Risk of Harm, Relevant Considerations and s 501: Wrangling the Minister's
Discretion. Australian Law Journal. 91(4). pp.268-275.
Online
Code of Conduct. 2018. [Online]. Available
through:<https://lenahung.com.au/wp-content/uploads/2017/05/Code_of_Conduct_April_
2017.pdf>.
Federal Court of Australia. 2018. [Online]. Available through :<
http://classic.austlii.edu.au/au/cases/cth/FCA/2018/330.html>.
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BIBLIOGRAPHY
https://www.lawhandbook.sa.gov.au/ch24s01.php
https://www.legislation.gov.au/Details/C2018C00337
https://www.legislation.gov.au/Details/F2018C00544/Html/Volume_2
https://www.legislation.gov.au/Series/C1958A00062
https://lenahung.com.au/wp-content/uploads/2017/05/Code_of_Conduct_April_2017.pdf
http://www.fedcourt.gov.au/law-and-practice/guides/migration
https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-
visa-refusal-or-cancellation-under-sectio-1
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