Migration Regulations In Australia Report

Answer 1 and 2:
File Note of Legal Research
re client issue
FILE NAME:
FILE REFERENCE:
DATE:
AUTHOR:
The present case study is to be dealt with in light of the Migration Act 1958
(Cth) and the Migration Regulations 1994. In Australia, visa application made by any
non citizen is dealt under the purview of the said Act. In this assignment, it will be
assessed whether Jasmine can lodge a new onshore partner visa here. Jasmine is
subjected to section 46(1)(d)(i)1 of the said Act. It states that if a visa application is
refused for a non-citizen then that person is to be adjudicated in the light of section
482 of the Act. Section 483 imposes a bar on the person for making application of visa
and allows him to apply only few types of visa. Section 48 imposes conditions like
that the applicant cannot be a citizen, must stay within the migration area, got refusal
of the visa either due to character issues or due to incorrect information in the
application. In this case, as Jasmine’s application of visa got refused, thus she is
comes under the purview of section 48(1)4 that does not allow her to apply visa
onshore. But as per Regulation 2125, she is eligible to apply only some types of visa.
1 Migration Act 1958 s 46(1)(d)(i).
2 Ibid s 48.
3 Ibid s 48.
4 Ibid s 48(1).
5 Migration Regulations 1994 - REG 2.12.

She has bridging visa but it cannot be considered as a substantive visa as per section
56. Now she desires to apply for the partner visa onshore, and she is permitted to
apply this visa as per section Regulation 2.12(1)(a)(b) under section 48. Thus she can
apply for partner visa as per section 46. Section 46(ba) provides that application for a
visa shall be made as per methods given in Regulation 2.07 which states the criteria of
visa application, further Regulation 2.07(1)(a)( c) provides that the required
conditions are given in Schedule 1 and all these must be followed to make a valid visa
application.
Item 1214(3)(a) of Schedule 1 provides that for class BS subclass 801, the
application of visa shall be made at the same place and time along with the visa
application for class UK subclass 801. Hence, Jasmine must fulfil this criterion given
for class BS but unfortunately she did not fulfil the criteria given in Schedule 1 item
1224B(3)(e)(i)7 which clearly points out that where an applicant is subjected to
section 48, she can apply for visa only when her previously refused visa was not a
partner visa. Here Jasmine got her partner visa application cancelled which is
included in Sub item (H) and (K) of sub class 801 and 802 respectively.
Considering all these, she cannot be allowed to lodge visa application
successfully in Australia. However, if she leaves Australia, she will not come under
the purview of section 488 and thus eligible to make valid onshore visa application.
If a visa application is not made by following proper guidelines, then such
application may be either cancelled or refused and after that a bridging visa will be
given to such applicant, in this case to Jasmine, and it will remain valid for 28 days
6 Migration Act 1958 s 5.
7 Migration Regulations 1994 Schedule 1 item 1224B(3)(e)(i).
8 Migration Act 1958 s 48.

from the date of refusal or cancellation of the visa. However within 28 days, if she did
not make any valid visa application, then after the expiry of 28 days, she will be
rendered to be unlawful as per section 14(1)9 which provides the definition of the term
‘unlawful’. Again, as per section 82(2)10, a visa ceases to exist if a substantive visa
comes into existence.
Section 189(1)11 provided powers to an officer of the Immigration department
to detain an applicant, here Jasmine if such officer has knowledge or suspicion that
such applicant is an unlawful as well as a non-citizen of Australia. In such case, she
will be detained until she is departed from Australia or given a visa otherwise
according to section 196(1)(a)(c)12.Moreover, according to section 198(6)13, a person
must be removed as quickly possible when he is a detainee and failed to apply
properly for a visa or the application made is refused and such visa application is
ultimately determined. This shows that the review option available for the application
is being exhausted or the time limit is over during which the application is required to
be submitted as per Part 5 and 7 or the final review result is decided as given in
section 5(9)14.
Jasmine may be allowed an exclusion period for going back or she may not
apply for an offshore visa under schedules 4 and 515 respectively. Unless she leaves
from Australia within 28 days time period after her visa expiry or possess a bridging
visa during her departure, then this time period will not be applied. However, this may
be waived under compassionate and compelling grounds. In addition, if Jasmine
9 Migration Act 1958 s 14(1).
10
Ibid s 82(2).
11
Ibid s 189(1).
12
Ibid s 196(1)(a)(c).
13
Ibid s 198(6).
14
Ibid s 5(9).
15 The Migration Regulations 1994 Schedule 4,5.