Analysing Australian Migration Law: Visa Applications & Scenarios

This case study delves into the intricacies of Australian migration law, specifically focusing on visa applications under the Migration Act 1958. It analyzes two scenarios involving individuals seeking permanent residency in Australia. The first scenario involves Anh, who initially entered Australia on a Prospective Marriage Visa and subsequently experienced abuse from her husband. The analysis examines whether her circumstances qualify as "compelling reasons" for a waiver of certain visa requirements, allowing her to apply for a permanent visa despite the abuse. The second scenario involves Petra, who is on a bridging visa and whose husband suffered an accident. The analysis explores the concept of “compelling reasons” in onshore visa applications, referencing relevant case law such as Babicci v MIMIA and Waensila v Minister for Immigration and Border Protection, and advises Petra on how to present her case based on her husband's dependency and financial hardship. The document is available on Desklib, a platform offering study tools and solved assignments for students.

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

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Analysis of Q1
1. Under Section 29(1) of the Migration Act 19581, a minister is empowered to grant any
non-citizen a visa to stay in Australia. Under Section 54, the Minister can grant visa after
the requirements under Section 55 are met. To hold a permanent residence in Australia, a
non-citizen has to get a permanent visa from the Ministry in Australia. After considering
the relevant criteria as mentioned in Section 65 of the Migration Act2, the Minister shall
grant the visa. The Minister shall consider whether all the relevant criteria are fulfilled by
the applicant or not. To apply for a permanent visa, Anh has to prove she has “compelling
reasons” but that rule does not apply in cases of events occurring after the application has
been made. Anh has to show that there are compelling reasons for waiver of the terms of
Sch 3 which entails that Anh will not have to leave Australia to reapply for visa. Anh has
to prove that the “compelling reasons” are such so that if a waiver is not allowed, Anh
will suffer hardships.
2. Anh is in Australia on a temporary Prospective Marriage Visa which has been sponsored
to her by her fiancé. After getting married to Phiet, Anh applied for an onshore visa after
6 months of marriage. After marriage, Phiet has embroiled himself in drugs and alcohol
and has also become an alcoholic. Phiet has started causing tremendous verbal abuse to
Anh and also causes physical abuse sometimes. Phiet sometimes come home inebriated
and causes physical abuse. In case of a holder of a temporary partner visa under subclass
300,309 and 820 and experiences physical or verbal abuse, the applicant can continue to
stay with the permanent partner visa under subclass 100 or 8013 application. Anh has to
1 Migration Act, 1958, sec 29(1).
2 Migration Act, 1958 sec 65.
3 Migration Act, 1958

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prove that there existed a relevant marriage to the exclusion of others and the applicant
also has to show that she has been abused physically by the partner.
3. Paragraph (d) in criteria 3003 and 3004 aims at accepting “compelling reasons” after the
application for partner visa has been made.4 In this case, the compelling reason for Anh is
to show that after her marriage, she was physically abused by her fiancé and he had lost
his job and had started doing drugs. This classifies as compelling reason because Anh
needs to stay in Australia and apply for a permanent visa. In this case, the physical abuse
counts as “compelling reason”. Additionally, Anh can also show that her sister is a holder
of permanent visa under subclass 1875 and therefore she has a claim for permanent visa
by virtue for her sister being a permanent citizen in Australia already. The “compelling
reasons” are enough to ensure that the Minister is satisfied that the applicant cannot face
the hardship and also make a fresh application from overseas.
ANALYSIS OF Q2
To apply for an onshore visa, that is a temporary visa, under subclass 820, the
applicant had to show “compelling” grounds that were present “at the time of the
application” under Sh 36. That is, the compelling reason, as cited by the applicant must
have been in existence while applying for the permanent visa. If the compelling reasons
did not apply during the application of the visa, the applicant shall be denied or refused
by the Ministry. Though there were a few waivers that were exceptions to the rule, it did
not apply to people who were married for a time period shorter than 2 years. The
compelling reasons as envisaged in the application were the applicant has to show that he
4 Migration Act, 1958
5 Migration Act, 1958
6 Migration Act, 1958.

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is the sole breadwinner of the family, that is, the family is dependent on him for financial
assistance. The applicant can also show that the sponsor is not working and is depending
on the applicant for help and support. In cases of abuse by the sponsor or in cases when
the sponsor suffers from any health condition, the applicant can show that the sponsor is
relying heavily on the applicant for financial support that can be ground for “compelling
reasons”. To avoid any risk to the Australian citizen, the measure is taken to ensure that
the citizen does not have to travel overseas to file for visa application.
Here, the word “compelling” is of great value because the applicant has to show
that the situation of the applicant is such so as to cause her emotional or financial
hardship and is a ground for visa application. The legislation has provided a limitation on
the application for permanent visa for non residents in cases of partner visas because the
applicant has to show that the conditions for applying for “compelling” grounds existed
before or while applying for the application.
Post the Babicci v MIMIA (2005) FCAFC 77 7case, which had set a timeline for
applying the principle of “compelling reasons” but in a welcome change, the case of
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 8was
decided which relaxed the conditions of applying for visa under the “compelling reasons”
ground. The court held that compelling reasons can be taken into consideration regardless
of when the incident had occurred. Therefore circumstances that had arisen after the
application was filed can also be taken into consideration.
Applying the principle as laid down in the Waensila case, Petra can be advised to
visit Anh. Petra is on a bridging visa and while she is waiting for a hearing from the
7 Babicci v MIMIA [2005] FCAFC 77.
8 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

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Tribunal regarding the refusal of visa, her husband has met with an accident that has
impaired his mobility. Fred has been advised to rest for 12 months to complete his
rehabilitation programme. Petra can be advised to apply citing “compelling reasons” as a
ground because her husband is dependent on her for financial assistance due to the
accident and that has caused her financial and emotional hardship. Therefore, under the
ground of “compelling reasons” Petra can be advised to state that though the condition
had happened post dated to the application, it falls under the principles as laid down by
the Waensila case.

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BIBLIOGRAPHY
Babicci v MIMIA [2005] FCAFC 77.
Migration Act, 1958
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.