Migration Law: Visa Denial and Appeal Process in Australia

This article discusses the visa denial and appeal process in Australia under Migration Law. It covers the criteria for visa denial, time limit for re-application, application fee, and the code of conduct for registered migration agents.

Migration Law
1

Contents
Question 1..................................................................................................................................2
Question 2..................................................................................................................................3
Reference List............................................................................................................................4
2

Question 1
(a) There are certain issues under which the visa application of Jaspal may be refused. There
are three types of criteria that have to be matched by a person to grant a visa under this
category. This involves adequate documentations presented, verification of the character and
the medical fitness of the applicant. It is important that the person who is applying for the
temporary partner visa in subclass 820 is present in Australia while the decision regarding the
acceptance of the visa application has been made. The subclass 801/820 partner visa denial
letters is often issued with appeal rights. Thus it is a fact that not always the department is
right in denying an application for partner visa that is why they provide the applicant with the
right to have further appeal to be done against the decision of denial. However, the
application has to be made on administrative appeal tribunal or AAT. The visa applications
that are made on subclass 820/801 are liable to review in AAT hearing1. There is a certain
type of denial of partner visa that is not be appealed in the AAT. This involves the denial of
the visa on the ground of Section 501 that is ‘character’. In such situation it is mentioned in
the refusal letter that reapplication on this ground is not applicable.
(b) It is important to note the review appeal has been bounded by time limit by the AAT. In
case of denial of a subclass 801/820 partner visa the time limit for a re-application is
generally 21 days following the receiving of notification regarding the denial of the visa. The
administrative appeal tribunal is not likely to entertain any application post the time allotted
for the appeal application. The application is to be addressed by the Australian appeal
tribunal and it takes almost 18 months or more for the AAT to address the appeal
application2. As mentioned before the appeal has to be made in 21 days post the notification
of the denial of the visa appeal.
(c) The application fee in case of a denial of visa application is $ 1,731. In case the
application in the tribunal is successful, then half of the fees of application that is $ 865.5 is
returned to the applicant by the tribunal. In case the application fails there wil be no refund.
1 McDonald, Peter, S. E. Khoo, and B. Edgar. "The role of family migration in Australia’s permanent migration
program." Policy discussion paper’, report to the Department of Immigration and Citizenship (2013).
2 Stevens, Catriona. "Temporary work, permanent visas and circular dreams: Temporal disjunctures and precarity among
Chinese migrants to Australia." Current Sociology (2018): 0011392118792926.
3

In case of hardship cases a certain amount of refund that is a partial refund can be done
depending on the merit of the case. Jaspal still has time to make the appeal as the decision has
been noticed by him on 15th of July 2015 and the day he has approached for consultation is
17th of July 20173. There are different forms to appeal in different cases. Jaspal can re-appeal
using ‘application for review of decision (individual)’ form. The application has to be made
by Jaspal because his visa has been refused in this case4.
Question 2
The migration agent registration authority or MARA fixes a code of conduct that has to be
followed by the registered migration agents that provides consultation to the applicants. The
code of conduct that is set by the MARA provides guidelines to the migration agents
regarding the obligations of the agent towards the clients. The Migration act 1958 section 314
provides with the regulation for the appointment of a migration agent5. The migration agent
regulation 1998 schedule 2 regulation 8 sets the code of conduct of the migration agents.
The ethical framework of the code of conduct suggests that a migration agent should always
follow highest standard of ethics while dealing with the clients. Honest and fair dealing has to
be executed in conducting business with the clients. The code suggests that an agent should
respond only to the legitimate request that is made by a client, to behave with the client with
competence and fairness, ensure that the client information are protected, have a clear idea in
dealing with interest conflict, regard the dependence of the client, ensure that there is no
misleading or deceptive suggestions made during the course of communication and lastly to
ensure that the client is not being intimidated or coerced for any purpose6.
Section 234 and 234A makes it a criminal offense to provide false or misleading information
to the department on behalf of the client or vice versa. Thus Japsal should be made aware of
3 Birrell, Bob. "The outlook for population growth in Australia." Sustainable Futures: Linking Population, Resources and
the Environment (2014): 25.
4 Homeaffairs (2018). Businesses, Agents and Trade Professionals. [online] Homeaffairs.gov.au. Available at:
https://www.homeaffairs.gov.au/busi [Accessed 5 Oct. 2018].
5 Cane, Peter. Administrative tribunals and adjudication. Bloomsbury Publishing, 2009.
6 Vrachnas, John, et al. Migration and refugee law: Principles and practice in Australia. Cambridge University Press, 2011.
4

his present status (ceased relationship with Irene) and his re-appeal should be turned down by
the migration agent7.
7 Mara (2018). Ethical framework - Office of the Migration Agents Registration Authority. [online] Mara.gov.au. Available
at: https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/ethical-framework/ [Accessed 5
Oct. 2018].
5

Bibliography:
Birrell, Bob. "The outlook for population growth in Australia." Sustainable Futures: Linking
Population, Resources and the Environment (2014): 25.
Cane, Peter. Administrative tribunals and adjudication. Bloomsbury Publishing, 2009.
Homeaffairs (2018). Businesses, Agents and Trade Professionals. [online]
Homeaffairs.gov.au. Available at: https://www.homeaffairs.gov.au/busi [Accessed 5 Oct.
2018].
Mara (2018). Ethical framework - Office of the Migration Agents Registration Authority.
[online] Mara.gov.au. Available at:
https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/ethical-
framework/ [Accessed 5 Oct. 2018].
McDonald, Peter, S. E. Khoo, and B. Edgar. "The role of family migration in Australia’s
permanent migration program." Policy discussion paper’, report to the Department of
Immigration and Citizenship (2013).
Stevens, Catriona. "Temporary work, permanent visas and circular dreams: Temporal
disjunctures and precarity among Chinese migrants to Australia." Current Sociology (2018):
0011392118792926.
Vrachnas, John, et al. Migration and refugee law: Principles and practice in Australia.
Cambridge University Press, 2011.
6