Australian Migration Law: Elisa's Visa Application and Agent Breaches

This report critically analyzes the case of Elisa, a traveler from Bosnia, and her Australian visa applications. Elisa held a Subclass 600 visitor visa with conditions 8101, 8201, 8501, 8503, and 8558. The report examines whether Elisa could validly apply for a Subclass 482 temporary skilled short...Read More

PARDEEP KAUR
S4633378
AUSTRALIAN MIGRATION LAW

PARDEEP KAUR
S4633378
Introduction
People wishing to travel may apply different types of visas based on the nature of their planned
stay in the country. 1For each class of Visa, there are certain conditions that the applicants must
meet before they are issued and as such various conditions are imposed on the visas. There are
different conditions that may be imposed on a visa such as conditions; 8101.8503 and 8558 just
but to mention a few. These conditions often have various restrictions and requirements, for
instance, no work and no further stay, among others.
Elisa travelled from Bosnia on her Subclass 600 visitor visa. Her subclass 600 visa had the
following conditions imposed 8101, 8201, 8501, 8503 and 8558. While still in Australia, Elisa
lodges and application for a subclass 417 visa and at this very time, her subclass 600 visitor visa
is still active and valid. Her former migration advises her lodge an application for a protection
visa subclass 866. Her former immigration agent is very reluctant in putting anything down and
based on this scenario; the agent commits several breaches.
This paper will critically analyze Elisa's case stating whether she could make a valid application
for a subclass 428 temporary skilled shortage visa based on her situation and circumstances.
Also, a description on some of the conditions on her subclass 600 visa will be addressed as well
1 Timpson, Richard. "Character-based visa cancellation." Proctor, The 36, no. 8 (2016): 16.
Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal
conduct." (2015): 7.

PARDEEP KAUR
S4633378
as the status of her subclass 417 working holiday visa that she had applied. Lastly, some of the
breaches that her former migration agent conducted will also be highlighted.
Whether she can make a valid application in Australia for a Class GK (Subclass 482)
temporary skilled shortage visa
Subclass 482 temporary shortage skill visa is a special kind of temporary visas that allows its
holders to stay in Australia and at the same time work in full-time basis for an employer who
should be the one sponsoring them for the Visa in the first place. 2This class of Visa has several
special provisions attached to it since one may decide to include some of the dependent family
members. Moreover, all applicants for this kind of visas should always have the capacity to
match the skill set of the identified job position they are being sponsored for. Besides, if they are
not permanent residents or citizens of the United Kingdom, New Zealand, Canada, Ireland and
the United States, they should provide their English language requirements during application.
Looking at the nature of Elisa circumstances and the situation she is currently in, she cannot
make a valid application for a subclass 482 visa. She has condition 8503 imposed on her Visa.
This is a condition that is mostly imposed on temporary visas the visitor subclass 600 being one
of them. The law provides that when a visa is subjected to condition 8503, the applicant is not
2 Cameron, Matthew. "From “queue jumpers” to “absolute scum of the earth”: Refugee and
organised criminal deviance in Australian asylum policy." (2013): 241-259.

PARDEEP KAUR
S4633378
allowed to apply for any other visa while still in Australia except for a protection visa only.3 As
depicted above, Elisa's subclass 600 visa had condition 8503 imposed in it and as such she
cannot make a valid application under the Australian Migration Act, 1954 (Cth) for a subclass
482 visa. In the case where she makes one, it will not be considered as it is in breach of a
previous visa condition.
Elisa's Visa conditions
Various conditions have been imposed on Elisa's current subclass 600 visitor visa. Some of the
conditions imposed herein comprise of conditions 8101, 8201, 8501, 8503 and 8558. 4All these
conditions have various implications as defined in the Migration Regulations 1994-sch(8)
2.05(1) and (2).
5Condition 8201 imposed on a visa implies that a holder of such a visa should not get involved in
any form of studies or training that surpasses three months. There are, however, several visas on
which such a condition does not apply. 6Some of these classes of Visa are; Subclass 590(Student
3 Australia, Migration Act 1958, s. 501
4 Australia, Migration Agents regulations 1998, s.8
5 Walsh, James. "From nations of immigrants to states of transience: Temporary migration in
Canada and Australia." (2014): 584-606.
6 Gerkens, Murray, D. Yau, S. Ozyurek, and Rodger Fernandez. "Australian Migration
Legislation Collection." (2016).

PARDEEP KAUR
S4633378
Guardian) visa, Subclass 675(Medical Treatment-short stay) visa, Subclass 685 (Medical
treatment-long stay) and Subclass 603 (Medial treatment visa in relation to the holder). Since
Elisa has this condition imposed on a visa, she cannot engage herself in any form of education or
training activity that proceeds beyond three months.
7Condition 8501 dictates that a holder of such a visa must always ensure that they maintain a
health insurance cover for the time they would be residing in Australia. 8They must provide
circumstantial proof of adequate insurance cover that will sustain them in their stay in the
country. Since Elisa visa has this condition imposed on it, she is required to maintain an
insurance cover for her entire stay in the country.
Apart from condition 8501, Elisa's Visa is also imposed with condition 8101. This condition
implies that Elisa cannot engage herself in any form of work in her entire stay in Australia. This
condition was intentionally set to prevent the holders from involving themselves in any work
while in Australia. The practical effect of this condition is that the holders will not under any
circumstances whatsoever be allowed to work in Australia as they wait for a resolution of their
immigration status. In case of a breach, the decision-maker may decide to cancel a visa based on
7 Segrave, Marie, Helen Forbes-Mewett, and Chloe Keel. "Migration review tribunal decisions in
student visa cancellation appeals: Sympathy, hardship and exceptional circumstances." (2017):
1-17.
8 Phillips, Janet, and Harriet Spinks. "Skilled migration: temporary and permanent flows to
Australia." (2012).

PARDEEP KAUR
S4633378
the nature of circumstances which resulted in the breach in the first place. 9A chance is usually
given to the holder to explain what forced them to breach the condition in the first place. After
this, the decision-maker has to base their decision according to the circumstances mentioned. If
they believe that the breach was out of the holder's control, a visa may not be cancelled. In this
scenario, Elisa's Visa has this condition, and for this reason, she cannot get engaged in any form
of the wok.
Condition 8558 implies that the holder cannot stay in Australia for a duration that exceeds twelve
months in a single eighteen-month period. In most cases, these conditions apply to temporary
visa valid for more than twelve years. 10It is, however, essential to note that it allows as many
entries as possible into the country and for each of these entries should not exceed twelve
months. As such, it is recommended that holders carefully monitor entry and exit in the country
to avoid breaching some of the aspects stipulated by these conditions. Unlike other types of
visas, breaching the of condition 8558 may have harsh consequences on future visa applications.
Finally, condition 8503 prevents the holder from applying for any other visa while they are still
in Australia. This conditions, however, allows for the application of only a protection subclass
866 visas. 11According to Migration Agents Regulations, individuals that apply for this Visa are
given a grace period to stay in Australia until their application is reviewed. It is, however
9 Walsh, James. "From nations of immigrants to states of transience: Temporary migration in
Canada and Australia." (2014): 584-606.
10 Opeskin, Brian. "Managing international migration in Australia: Human rights and the “last
major redoubt of unfettered national sovereignty”." (2012): 551-585.
11 Migration Agents regulations 1998

PARDEEP KAUR
S4633378
important to note that there are certain situations where this condition can be waived. This has
been indicated in section 501 of the Australian migration act. 12The provision is that there must
be compelling as well as compassionate circumstances that have developed since getting into
Australia. Some of the recognized compassionate and compelling circumstances are death or
illness of a close relative, a natural disaster at home country when a holder is declared unfit to
travel and in the case of severe cases of unrest in the holder’s home country. As such, the
Minister for immigration must be fully convinced that the circumstances are compassionate and
compelling. Because of this reason, Elisa cannot make a valid visa application for her Class GK
(Subclass 482) visa.
Status of Elisa's working Holiday (Subclass 417) visa
A working Holiday Subclass 417 is a special type of Visa that allows the holder to engage
themselves in work but on a short term basis while they stay in Australia. Besides, holders of this
kind of visas are also allowed to study for up to four months. 13However, it is significant not to
note that the holders of this type of Visa must be aged between eighteen and thirty years old.
After working for a period of up to six months, holders of this type of visa qualify and become
eligible for a third working Holiday visa.
12 Timpson, Richard. "Character-based visa cancellation." (2016): 16.
13 Billings, Peter, and Khanh Hoang. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia." pp. 119-
148. Springer, Singapore, 2019.

PARDEEP KAUR
S4633378
14Before a subclass 417 visa is issued, certain conditions must be met by the applicant. Looking
into Elisa circumstances at the moment, she is not eligible for a fist time subclass 417 visa. First
and foremost, she is in Australia, and this automatically disqualifies her. This is so because it is a
requirement when applying for this type of Visa, the applicant is outside Australia. Apart from
her being outside Australia, she also comes from Bosnia which is not listed among the eligible
countries for a first time working subclass 417 visa. 15Here, the countries eligible for this type of
Visa are; France, Denmark, Belgium, Netherlands, Germany, Canada, Malta, Sweden and the
Republic of Korea just but to mention a few. 16As a result of this, there is no possible way that
she would be considered for this type of Visa. Lastly, Elisa lodged an application for a first time
working holiday subclass 417 visa whole her visitor visa was still active. At this very time, her
current Visa, subclass 600, had a condition 8503 was imposed on it. This condition prohibits
holders from making other visa applications while in Australia with exceptions of protection
visas. Due to this, Elisa's application of a fist time working holiday visa will be considered as a
breach of condition 8503 on her subclass 600 visa.
14 Lien, Christina, and Chris Johnston. "Migration law: Pardon or punish?: The ongoing burden
of visa cancellation even after serving time." (2019): 14.
15 Migration Agents regulations 1998
16 Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers
and working holiday makers in Australia." (2014): 1915-1933.

PARDEEP KAUR
S4633378
Breaches made by her former migration agent
In this particular scenario, various breaches were caused by Elisa's previous migration agent.
First and foremost, her migration agent was very reluctant in putting anything down on paper.
17This is a breach of clause 6.0 and 6.1 of the Australian Agents Regulations. This clause
indicates that should always keep precise records of every communication they have with the
clients for a period of up to seven years. 18Also, some other relevant information that should be
followed by the client comprises of documented communications between the client and the
department, department and the agent as well as communications with the relevant authorities.
Oral communications between the client and the migration agent should also be appropriately
kept for future reference.
Secondly, the migration agent also breached some other set of regulations stipulated in the
Australian migration agent regulations. The agent did not inform Elisa about the refusal of her
visa application within a reasonable time just after the application has been lodged to the relevant
authorities.19 Besides, in the case of a refusal or cancellation, the migration agent should inform
17 Migration Agents regulations 1998
18 Billings, Peter. "Regulating crimmigrants through the ‘character test’: exploring the
consequences of mandatory visa cancellation for the fundamental rights of non-citizens in
Australia." (2019): 1-23.
19 Mares, Peter. "Temporary migration and its implications for Australia." Papers on
Parliament 57 (2012).

PARDEEP KAUR
S4633378
the client on some alternative actions that they can follow. For this particular scenario, Elisa was
not advised by her migration agent on some alternative methods to take and was also not
informed within reasonable time regarding her visa cancellation.
Apart from informing Elisa within a reasonable time about her visa cancellation, the agent
purposefully made statements and supported an application that he believed was misleading and
incorrect. 20This is according to sch 2.9 of the code of conduct. In this scenario, Elisa was
convinced by her former migration agent to make an application for a protection visa subclass
866. The agent indicated that this would buy Elisa more time in the country. The statement was
somewhat misleading and inaccurate, and as such, it was a direct violation of sch2.9A of the
code of conduct as stipulated in the Australian Migration Act.
Bibliography
Books and Articles
20 Australia, Migration agents code of conduct, part 2

PARDEEP KAUR
S4633378
Billings, Peter, and Khanh Hoang. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia."
In Crimmigration in Australia, pp. 119-148. Springer, Singapore, 2019.
Billings, Peter. "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 71, no. 1 (2019): 1-23.
Cameron, Matthew. "From “queue jumpers” to “absolute scum of the earth”: Refugee and
organised criminal deviance in Australian asylum policy." Australian Journal of Politics &
History 59, no. 2 (2013): 241-259.
Gerkens, Murray, D. Yau, S. Ozyurek, and Rodger Fernandez. "Australian Migration Legislation
Collection." (2016).
Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal
conduct." Legaldate 27, no. 2 (2015): 7.
Lien, Christina, and Chris Johnston. "Migration law: Pardon or punish?: The ongoing burden of
visa cancellation even after serving time." Bulletin (Law Society of South Australia) 41, no. 10
(2019): 14.
Mares, Peter. "Temporary migration and its implications for Australia." Papers on Parliament 57
(2012).
Opeskin, Brian. "Managing international migration in Australia: Human rights and the “last
major redoubt of unfettered national sovereignty”." International Migration Review 46, no. 3
(2012): 551-585.

PARDEEP KAUR
S4633378
Phillips, Janet, and Harriet Spinks. "Skilled migration: temporary and permanent flows to
Australia." Background Note, December, Department of Parliamentary Services (2012).
Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers
and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40, no. 12
(2014): 1915-1933.
Segrave, Marie, Helen Forbes-Mewett, and Chloe Keel. "Migration review tribunal decisions in
student visa cancellation appeals: Sympathy, hardship and exceptional circumstances." Current
Issues in Criminal Justice 29, no. 1 (2017): 1-17.
Timpson, Richard. "Character-based visa cancellation." Proctor, The 36, no. 8 (2016): 16.
Walsh, James. "From nations of immigrants to states of transience: Temporary migration in
Canada and Australia." International Sociology 29, no. 6 (2014): 584-606.
Legislation
Australia, Migration Act 1958, s. 501
Australia, Migration Agents regulations 1998, s.8
Australia, Migration agents code of conduct, part 2

PARDEEP KAUR
S4633378