Migration Law: Visa Cancellation and Alternative Options

This article discusses the cancellation of a contributory parent visa application under section 501 of Migration Act 1958 and suggests alternative visa options. It also highlights the duties and responsibilities of registered migration agents under the Code of Conduct.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the student
Name of the university
Author note

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Table of Contents
Answer to question 1..................................................................................................................2
Answer to question 2..................................................................................................................4
Answer to question 3..................................................................................................................5
Reference:..................................................................................................................................9

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Answer to question 1
To
The Ministry
Immigration and Border Protection Department
Australia
Sir,
Mr. Abdul and his wife Mrs. Yasmin have made a contributory parent visa application
before the immigration department. However, the application was cancelled under section
501 of Migration Act 1958. I am appointed as their registered migration agent and thereby
crave your attention regarding the concise submission so that you may revise the decision of
the department on the following ground:
All the migration related courses and problems are maintained by the Immigration and
Border Protection Department. Therefore, certain duties have been imposed on the
department. Every individual, who is applying for any visa to stay in Australia, must have to
qualify certain tests. Character test is among them. The main intention of the immigration
department behind the same is to secure the national and community interest of Australia1. If
any person has failed to comply with the provision of the character test, his visa application
will be rejected or cancelled under section 501 of the Migration Act 19582. Further, under
section 501(3), it has been mentioned that the Minister or the delegate has the right to cancel
the visa application if the required grounds are not met properly. However, the minister has a
right to revise the cancellation of visa and grant visa under section 501B of the Act. In this
1 Donnelly, Jason. "Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A Threat to Rule of
Law Values." Victoria UL & Just. J. 7 (2017): 94.
2 Migration Act 1958 (Cth) s. 501

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case, it is important to point out the required grounds for the character test mentioned under
section 501(6) of the Act3.
According to this section, any person who have a criminal record or who has been
convicted while in the immigration detention, could not apply for visa. Further, any applicant
against whom an allegation under section 197A has been made could not qualify the
character test. The person must not engage with any criminal activities and should not be
charged with an offence. According to the previous record of my client, it has been observed
that he has been convicted and sentenced for giving bribe to the government official and
based on the fact, his application of visa has been cancelled. However, in this concise
submission, I am requesting you to reconsider my client’s on the following grounds:
According to the fact sheet 79, no person ought to be liable for any criminal
substantial record. However, it has also been mentioned under fact sheet 65 that the
responsible minister has certain discretionary power to revise the decision for cancellation.
The character of the applicant must not affect the communal interest of the country is the first
requirement4. According to the previous report of my client, it has been observed that he has
committed an offence thirty years ago and since then, nothing has been complained against
him. Further, he is a man of social work and a major portion of his profit amount goes to
various social organisations. Additionally, he is an active member of women refugee camp in
Malaysia.
According to the provision of the contributory parent visa, the applicant should have
the eligibility to meet the balance of family test. According to the rule, the applicant should
have a child who is a permanent resident of Australia. My client has successfully passed this.
According to fact sheet 65, if the cancellation of visa will affect the family of the applicant,
3 Migration Act 1958 (Cth) s. 501(6)
4 Donnelly, Jason. "Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A Threat to Rule of
Law Values." Victoria UL & Just. J. 7 (2017): 94.

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the Minister can change the decision. The grandchild of my client is affected by Down
syndrome and at this point of time, my client is required to see her, as she is close to my
client or my client will suffer from irreparable loss.
It is my earnest request to you that kindly look into the matter and revise the decision
of the immigration department by considering the position of my client and his family as
well. Further, if the application for visa will be granted, it will not affect the national interest
of Australia.
Regards,
Answer to question 2
According to the brief statement of the case, I have understood that you and your wife
have applied for a contributory parent visa under subclass 143. The nature of the visa is
permanent and the reason is that you want to see your grandchild, who has been suffering
from a severe syndrome. However, there are certain eligibility provisions mentioned in the
Act for obtaining contributory parent visa. However, you have maintained the eligibility
provision, but because of your previous criminal record, the department has refused to grant
you the visa under subclass 143. Further, you have made a request on that ground to the
minister as well; but the decision is still pending.
Considering you condition, I must inform you that besides the subclass 143 visa, you
have certain other options to be exercised in your case. The nature of subclass 143 visas is
permanent and if the application is not allowed, you may try for subclass 173 visas, that is
temporary in nature and you will be allowed to stay in Australia for two years5. In this sector,
you will be able to see your grandchild who is sick. Further, you may apply for parent visa
5 Moss, A. "Risk of Harm, Relevant Considerations and s 501: Wrangling the Minister's Discretion." Australian
Law Journal91.4 (2017): 268-275.

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under subclass 103 and the eligibility criteria of such visas are quite identical. The
requirements of the family balance test are similar and you will be able to apply for all these
visas. According to the rules for these visas, you should have at least one child who is a
permanent citizen of Australia. According to your statement, you have two children and
seven grandchildren and all of them are permanent residents of Australia. Therefore, you may
apply for the visas.
Apart from these, you have certain other options to be applied for. There is a visa
named contributory aged parent (resident) visa under subclass 864 and contributory aged
parent (temporary) visa that has been mentioned under subclass 884. Both the visas are
engraved in Migration Act 1958. The eligibility criteria of these visas are similar to the visa
you have applied for. However, in every case of those visas, there is a common requirement
that is the character test. According to the provisions, you have to fulfil the requirements.
However, if the consequence of the concise submission becomes positive, you may apply for
any one of the visa.
Further, your visa application will be granted in the ground of grave and compelling
circumstances (protection visa) in Australia. According to the visa condition 8559, if any of
the family members of the applicant is seriously sick, the applicant can apply for the visa.
Further, it has been mentioned under section 48B of the Act, the minister has the
discretionary power to grant visa to the non-citizen if the visa has been cancelled previously.
In this case, the past criminal record will not affect the visa granting process of the applicant.
You are therefore, advised that besides the visa applied by you under subclass 143,
you may apply for any of the visas mentioned above. However, the nature of most of the
visas is temporary; however, you may get an opportunity to see you ailing grandchild at her
crucial moment.

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Regards,
Answer to question 3
The facts of the case of Abdul reveals that he is a citizen of Malaysia and his
daughters and grandchildren are permanent residents of Australia. It has also been contended
that he is close to his grandchildren and one of his grandchildren named Heather is suffering
from Down syndrome. Abdul and his wife are quite tensed with the news and want to reach
Australia to see her. They had applied for a Contributory Parent Visa under subclass 1436.
However, because of a previous criminal record, Abdul has failed to pass the character test
and they get a notice for visa refusal. After they had contacted me and stated their situation, I
have submitted one request form to the Minister of Immigration and Border Protection
Department. Being a registered migration agent, it is my duty to guide them properly.
However, at this point of time, Abdul and his wife came to me and wanted to know
about the possible remedies and result they could get from the request application made by
me on their behalf before the Ministry of the Immigration department. In this case, I have to
follow the provision of the Code of Conduct, as certain duties are imposed on the registered
migration agents under the Code. As per the provisions of the Code, the below stated
conducts and rules are required to be maintained by each agents properly, otherwise penalties
can be imposed thereon.
Different necessities have been prescribed by the order like the Migration Act, which
associated with the enlisted migration agents. The obligations and liabilities of movement
specialist have been said under area 314 of the Migration Act 1958. Meanwhile, there are the
Migration Regulations, 1998 and moreover the Code of Conduct for the development
administrators which in like manner give the standards to control the direct of movement
6 Nicholson, Alastair. "Asylum seekers, children and The'Migration Act 1958'(Cth)." Legaldate 27.4 (2015): 2.

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authorities. The law requires that the development administrators in Australia must be
enrolled with Migration Agents Registration Authority, which is also alluded to in short as
MARA7. To be enlisted with MARA, it is essential that the migration authority have serious
data of development game plan and frameworks. Correspondingly, the law in like manner
requires that the exercises of the development administrators be according to the Code of
Conduct. In such way it ought to be seen that the organization of Australia has similarly
bolstered this Code and appropriately, it is managed as a bit of Australia's movement
institution. According to the law, a man is thought to give development help with case the
individual uses association or data concerning the movement technique remembering the
ultimate objective to help some other individual concerning the issue is that can be said to fall
inside the game plans of Migration Act. It has been generally watched that assistance is given
if there ought to emerge an event of the methodology related with archiving the visa
application, sponsorship or visa crossing out. In any case in such way it is to be seen that the
issues like reporting the visa application shape or disentangling or interpreting or giving
information related inside an issue concerning the application anyway not giving any
comment or elucidation can't be said to give such help. The law in like manner gives that a
man can maintain to be enrolled movement administrator just if such individual is enlisted
with MARA to give relocation help8. As indicated above, it is principal for all the movement
administrators were working in Australia that they should be enlisted with this association.
The development administrators should undeniably tell their clients that generally the cost
evaluates that has been given to the client by the movement pro does not cover the
organization cost for whatever different charges that the client may need to pay and along
these lines, such measure just covers the cost that is being charged by the migration master
7 Ombudsman, Commonwealth. "The Department of Immigration and Border Protection: The administration of
Section 501 of the Migration Act 1958." Canberra, Australia: Commonwealth Ombudsman (2016).
8 Schilling, Meredith. "Migration law [Book Review]." Victorian Bar News 160 (2016): 96.

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for the master organizations that are given by such authority9. In such way, an obligation as a
constrained on the development pros to give a correct check of the clients concerning each
one of the costs that are payable. For example, the client should be doubtlessly taught that the
obligation with respect to paying any additional charges like the cost for translation or
illustration benefits, any feed that may be payable to genuine specialists and accountants, cost
for restorative reports, dispatch charges for the charge that may be charged for ace advice
ought to be paid by the customers. It is the optional intensity of the Minister whether to drop
the visa application or to overhaul the same10. Being a specialist, I should mention it to Abdul
and guide them appropriately with respect to the next visa alternatives. Further, it is my duty
to inform them categorically and I should not exaggerate anything to draw their attention.
Additionally, it is to be stated that I must act for the best interest of Abdul and his wife and I
will do all the necessary things regarding the same.
9 Singh, Supriya. "Introducing a temporary visa for parents: Submission." (2016).
10 Smith, David, et al. "Developments in Australian migration." Canadian Studies in Population 43.1-2 (2016):
117-145.

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Reference:
Askola, Heli. "Who Will Care for Grandma? Older Women, Parent Visas, and Australia’s
Migration Program." Australian Feminist Law Journal 42.2 (2016): 297-319.
Donnelly, Jason. "Failure to give proper, genuine and realistic consideration to the merits of a
case: a critique of Carrascalao." University of New South Wales Law Journal41.2 (2018).
Donnelly, Jason. "Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A
Threat to Rule of Law Values." Victoria UL & Just. J. 7 (2017): 94.
Migration Act 1958 (Cth)
Migration Agent Regulation Act
Moss, A. "Risk of Harm, Relevant Considerations and s 501: Wrangling the Minister's
Discretion." Australian Law Journal91.4 (2017): 268-275.
Nicholson, Alastair. "Asylum seekers, children and The'Migration Act
1958'(Cth)." Legaldate 27.4 (2015): 2.
Ombudsman, Commonwealth. "The Department of Immigration and Border Protection: The
administration of Section 501 of the Migration Act 1958." Canberra, Australia:
Commonwealth Ombudsman (2016).
Schilling, Meredith. "Migration law [Book Review]." Victorian Bar News 160 (2016): 96.
Singh, Supriya. "Introducing a temporary visa for parents: Submission." (2016).
Smith, David, et al. "Developments in Australian migration." Canadian Studies in
Population 43.1-2 (2016): 117-145.

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