Migration Law: Analysis of Visa Conditions and Application Advice

This report provides a letter of advice regarding Australian migration law, specifically addressing a client's overstayed Visitor (Subclass 600) visa and the implications of conditions 8503 and 8101. The advice explores the possibility of applying for a Protection Subclass 866 visa or seeking a waiver of condition 8503, while also clarifying why a Student Subclass 500 visa is not a viable option due to the existing conditions. The report references relevant sections of the Migration Act 1958 and the Australian Code of Conduct for registered migration agents. Additionally, the report addresses a breach of the Migration Agents Regulations 1998, highlighting a migration agent's failure to keep a client informed about their visa application and a breach of confidentiality. The report concludes by referencing relevant legislation and regulations.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the Student:
Name of the University:
Author Note:

1MIGRATION LAW
To
Anna Walker,
Australia.
Subject: Letter of advice
Dear Ana,
Thanks for giving us an opportunity to serve you as a migration agent. As we have
discussed in the meeting, you have overstayed your Visitor (Subclass 600) visa for about 1
week. Though your visa has expired already one week back, 28 days grace period is allowed
to apply for a new visa under the provisions of the Migration Act1. Hence time is there to
apply for a fresh visa. Being a registered migration agent, I can assure you that I will always
act according to the prescribed law of the country as given in clause 2.1 of the Australian
Code of Conduct2 for registered migration agents.
However, it has come into my notice that your visitor visa is subjected to two conditions
of 8503 and 8101. Under the provisions of the said Act, 8503 condition is a mandatory
condition and it prevents the application of a new visa in Australia other than Protection Sub
class 866 visa.
The 8503 condition provides a ‘no further stay’3 criterion which prohibits the visa holder
from applying many permanent as well as temporary visas when they are staying in
1 The Migration Act 1958.
2 Australian Code of Conduct, clause 2.1.
3 "No Further Stay Waiver", Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visa-
conditions-subsite/Pages/no-further-stay-waiver.aspx>.

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Australia. Protection Sub class 8664 visa allows an applicant to stay in the country for an
indefinite period, work as well as study in Australia, enroll for health care schemes. It even
allows applying for citizenship once the applicant becomes eligible. This type of visa is
usually for the refugees who are seeking asylum due to the fear of persecution in their
original home country because of race, nationality, religion and other similar type of reasons.
The Protection Visa has some benefits too. By holding this, you can live as well as work as a
permanent resident in Australia. Moreover, you can have access to the Centrelink services
and Australia's health care scheme. Thus due to the condition 8503 on your Visitor visa, you
cannot apply to any other type of visa.
Moreover, it has come into my notice that condition 8101 is also imposed on your
previous visa. As per 8101 visa, you will have no right to work in Australia. As per the
conversation we had, it is seen that you have not violated these two conditions. Hence, there
is no limitation on you. You can easily apply for Protection Sub class 866 visa.
As per the provisions of the said Act, the conditions needed for Protection visa are as
follows:
 The applicant must be on a valid visa in Australia and not by any illegal arrival,
 The applicant must meet the protection duties of Australia,
 Applicant is not prevented from lodging application of Protection visa,
 The applicant satisfies the health as well as the character need.
4 Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
protection-866>.

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Alternatively, you can apply for waiver of condition 8503 from your visa as per
Regulation 2.05(4) of the Migration legislation5 of Australia. But since your visa has already
expired and you are now staying in the grace period, you can visit the office of the
Immigration department to discuss on your status of immigration. Hence, you are not eligible
for protection visa.
Again you are not allowed to apply for the Student Subclass 5006 visa because of the
presence of the 8503 condition on your previous visa. Further due to the effect of the clause
1222(4) of the schedule 2 of the Migration Regulations, you cannot get the student visa. You
have showed interest that you desire applying for the Student Subclass 500 visa as you said
that you came to know from an online forum which states that you possess the eligibility for
applying a Student Subclass visa only as you do not possess any visa now. But being a
registered migration agent, I must let you know that you will not succeed in it. It is my duty
to guide you correctly regarding the result of a visa application as per clause 2.7 of the Code7.
It will be against clause 2.98, if I mislead you by confirming with your desire to apply for the
Student Subclass visa.
As per clause 2.209 of the said Code, it is my duty to inform you regarding the correct
amount of visa charge. The charge for applying the Protection Sub class 866 visa is 40 $.
Hence, you will be required to pay this amount of money if you want to apply this visa.
Thus, this is to let you know that though you have intended to apply for the Student Sub
class visa like your friend but as per the Migration Act 1958, due to the presence of the 8503
5 Migration Regulations 1994, REG. 2.05(4).
6 Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
student-500>.
7 Australian Code of Conduct, clause 2.7.
8 Australian Code of Conduct, clause 2.9.
9 Australian Code of Conduct, clause 2.20.

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condition, you will not be able to succeed in it instead you have the option of applying to the
Protection visa or applying for waiver of 8503 condition. For this your further cooperation is
needed to proceed with the application under the said Act.
Thank you
Yours faithfully.
Answer 2:
As per the provisions enumerated in clause 2.8 of the Migration Agents Regulations
1998- Schedule 210, the migration agent has the duty to keep the client well informed about the
updates about the progress of the case or application for which he was assigned by the client.
Further, he has the duty to inform the outcome of the case or application of the client after it has
been decided within reasonable time.
As per the facts of the present case, the migration agent was previously contacted by
Isabella for her Student Sub class 500 visa. He failed to keep her well informed about the
progress of her visa application. Moreover, the application of the said visa was granted one week
back. But being busy, the migration agent did not did not inform her about the grant. This
breached clause 2.8 of the said Regulation. Hence, the migration agent has breached clause 2.8
of the Migration Agents Regulations 1994 by not complying with its provision.
He also breached the clauses 3.1 and 3.2 as according to these clauses, a migration agent
must keep the information of a client in confidence and not disclose it without the written assent
from the client. Here the agent informs Anna about updates of the Isabella’s visa application
10 Migration Agents Regulations 1998, clause 2.8.

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without her permission. Further he breached clause 5.2 also as he did not give fees receipt after
taking the consultation fees of 200 $.

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References:
The Migration Act 1958 (Cth).
Australian Code of Conduct
"No Further Stay Waiver", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visa-conditions-subsite/Pages/no-further-stay-waiver.aspx>
Migration Regulations 1998.
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/protection-866>
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/student-500>