Legal Analysis of Australian Visa Requirements and Potential Pathways

This report offers a comprehensive legal analysis of Australian visa requirements, focusing on the case of an individual, Parker, facing visa complications. It begins by outlining the conditions attached to a Work and Holiday visa (Subclass 462) and the implications of violating these conditions. The report then delves into the scenario where Parker is placed in immigration detention and explores his options for applying for a protection visa (Subclass 866), considering the legal restrictions imposed by the Migration Act 1958 (Cth). The analysis extends to the possibility of Parker enrolling in a Master of Accounting program, evaluating his eligibility for a Student visa (Subclass 500) based on his previous visa conditions, language requirements, and compliance with Australian law. Finally, the report recommends the application for a Partner visa as a more viable pathway for Parker, outlining the required documentation and costs involved. The report concludes by summarizing the legal frameworks governing Australian visas and providing a bibliography of relevant legislation and resources.

Ans 1 The visa conditions attached to his Work and Holiday Subclass 462 can be found in schedule-
two under clause 462.6 Conditions of MIGRATION REGULATIONS 1994(Cth). There are two
mandatory conditions 8547 and 8548.1 Sc462 visa allows individuals from age group of 18-30 years to
extend holiday in Australia by working in the region for funding their extended trip. Section 41 of
migration act enables migration regulation to provide visas under various condition. Out of which Reg.
2.05 is the condition. It states providing visa to various individual under respective condition from
which discretionary visa conditions is part of various situations. Clause 462.611 is the amendment that
regulates extra stay of an individual as per Sc462. As in the case of Amitabh, due to respective situation
that has happened to his uncle due to which he has to stay for longer then expected. Therfore, as per
rules and regulatory laws, he can exctent his visa by working under specified conditions as mentioned
in Sc462. 194
8547- The applicant cannot be employed with one employer for more than six months without the
Secretary's prior written permission.2
8548- The applicant cannot study or get training for more than four months.3
Minister may impose other conditions too from 8303,8501,8503,8516, and 8540 unless the computer
program decides the application under an arrangement under Section 495A of the Act.4
As told by Parker, his visa had conditions 8547 and 8548 attached to him out of all these conditions.
We can determine what conditions can be imposed on a particular visa by looking at schedule -2 of
MIGRATION REGULATIONS 1994(Cth) under clause Conditions of the subclass whose visa
conditions we have to find. All these conditions are to be adhered to by the applicant if they are
attached to his visa Subclass. To check which conditions the minister put on the visa, we need to check
the visa grant letter.
For example, if we have to find what conditions can be imposed on partner temporary visa subclass
820. We have to go to schedule two, then clause condition, which is 820.6, and we can see the
conditions that the minister can impose on this visa. Which is nill so there no condition attached to a
partner
(temporary )visa
1Roger Fernandez et al,Australian Migration Legislations Collection(Lexisnexis January 2021) Sch-2 Subclass 462 cl
462.611.
2 Sch-8 MIGRATION REGULATIONS 1994(Cth).
3 Sch-8 MIGRATION REGULATIONS 1994(Cth).
4 Sch-2 Subclass 462 cl462.612.

Ans 2 As told by parker, he was placed in immigration detention yesterday. We have to first inform an
officer in writing about parker’s intention to apply for a visa.5
A protection visa is defined in MIGRATION ACT 1958(Cth) s 35A and regulation 1.03 of
MIGRATION REGULATIONS 1994(Cth). The criteria to be satisfied by an applicant are specified in
MIGRATION ACT 1958(Cth) s 36.
As parker informed that he has already applied for a protection visa subclass 866, but unfortunately it
was rejected as due to invalid application being made. He cannot make a further application for a
protection visa according to section 48A. It does not matter if the application made for a protection visa
is granted or refused or has not been determined he cannot make a further application.6 s194 in
regulating visa requirements states that, detaining of time limits to lodge visa, however which can be
granted if an individual is resident of Australia. s46 is concerned with unauthorised maritime arrivals
i.e. it states that if an applicant if the visa is unauthorised maritime arrivals who is in Australia and
either is ab unlawful non-citizen or holds a bridging visa or temporary visa. As in the case of parker
who was non resident of Australia and due to certain complecations in his life have to extend the
deadline of the visa, therefore, this situation falls under s46 condition and on the basis of which Parker
has to go through various legal formalities. With addition to that under s47 and s48 it might be the
possility that visa of respective individual is being cancelled after charging the relevant service fee
from the individual and have to return to resident country as soon as possible. Moreover, considering
Reg. 2.12 which states individual yunder category of which visa is being refused due to breach of
specific conditions or terms as mentioned in its terms and condition colum of visa.
The only scenario to make him eligible for another protection visa is if his circumstances change or
satisfy the minister to wave 48A. Minister may determine 48A does not apply if he thinks it is in the
public interest to do so. The minister may give a written letter to a non-citizen that sec 48A does not
apply to prevent a protection visa application. Period ending seventh working day from when the notice
was given7
If the minister is satisfied that if a non-citizen is forcefully removed, he will suffer significant harm in
his home country. He will be deprived of their life, get the death penalty, torture, or be punished. So, if
5MIGRATION ACT 1958(Cth) s 195(1)(b)
6 MIGRATION ACT 1958(Cth) s 48A (1)(a)(b), (1B)
7 MIGRATION ACT 1958(Cth) s 48B(1)

he can provide evidence of any of the above situations, he can apply for another protection visa. 8
According to the scenario in the question, Parker wants to bring his life back on track, not
worried about whatever may be the visa. So Appling for a protection visa for someone not in need of it
intends to apply to buy time will be against the agent’s code of conduct9 . He might not be eligible for a
student visa or waiver. We can suggest to him other pathways like knowing he has been married to an
Australian citizen partner visa could be an option because he is still in 2+5 days detainee may apply for
visa frame.10
Ans-3 In the event parker decides to enroll in a master of Accounting at Victoria University in
Melbourne, he may not be able to make a valid visa application for a Student Temporary Class TU
(Subclass 500) for various reasons.
 The visa conditions 8548 attach to his last visa he entered do not allow him to study for more
than four months.11
 According to Victoria university’s eligibility for admission12 and general requirements for
admission, he would not be able to provide the language requirement for higher studies13 , and
his actions have been proved contrary to Australian law14
o The enrollment number or offer letter is the essential requirement. Evidence to apply for
a student visa with the institution is one of the major requirements for a Subclass 500
visa15. It has been said in subitem number 3(c) of item number- 1222 in schedule-1
that’s satisfying primary criteria is a must 16 , and the visa application must be
accompanied by the evidence clarifying the applicant’s intended course of study in
Australia. Other conditions that may be attached to be adhered to while making the
application for this visa.
8 MIGRATION ACT 1958(Cth) s 36(2A)
9 Migration Agents Regulations 1998 Sch-2 part 2.17
10 MIGRATION ACT 1958(Cth) s 195(1)
11 Sch-8 MIGRATION REGULATIONS 1994(Cth). Condition 8548.
12 https://policy.vu.edu.au/document/view.php?id=70 ,Section 6 Part A(22) and B(24) and general selection criteria (28-32)
13 English language reqirement(36,37,41)
14 Legislative or external reqirement(34 and 35)
15
16 Schedule 1, Item no- 1222- Student (Temporary) (Class TU), Migration Regulations, 1994.

 If we assume that he is still in 7 days time frame where a detainee can apply for a visa, check
his eligibility to apply for a valid visa application under section 195 17while looking at section
46 to check his visa application's validity. It is not 48A bared.18
o He can be eligible for a student visa application only if he can get a waiver in the public
interest if he can provide evidence to prove that.
Schedule 1 for visa sets specific ways and methods from which an individual can aquaire visa
of respective nation by following legal formalities. These are the set of rules that are based upon
various non citizen individual of the nation and wanted to applu for visa after mentioning certain
resons. It is to clarified to various individuals that, those application that are made in lieu of schedule 1,
this would lead to invalid visa application and would be ultimately cancelled. As in the current
scenario, Parker have applied for visa which is being cancelled or rejected due to above mentioned
reasons. He has to follow specific guidelines or go thrugh working of system which is being clearly
mentioned in the application form after rejection of first application. Various sections such as s47, s48,
s194, Reg 2.07 and Reg 2.12 are to taken care of while applying for visa in Autralia.
Ans-4 As in the case of Amitabh’s student i.e. Parker, who’s visa is being expired, it is to recommened
to Parker that, he should apply for “Partner Visa”, instead of “Carer Visa”. As per the scenario, Parker
application of “Partner Visa”, would prove to great help to him. As he has a couple partner in the given
region i.e. Australia, therefore, success rate of “Partner Visa” will be get more chances or probablity to
get accdpeted. As per the scenario, Parker is already stuck in tough situation of its life which are
proving to be very frustrating to him. He wanted his life back on track as soon as possible and also has
to develop better as well as stable life conditions in its respective life.
There are various required documents and certificates which are required for application of
“Partner Visa”, this include, documents of proof of individual’s relationship, certificate copy of
Marriage certificate. With addition to that, various documents are to required if spouse was married to
before or was divorced/separated or be widowed. Various certificates including death certificate,
divorce document, separation document are also required in the application of such visa.
The cost for application for “Partner Visa” ranges from $3500-$6600 which is an exclusion of
GST and the respective variable that is presented also depends upon complexity of case which is also
paid in two parts. With addition to that, there is add on of 1.40% as a surcharge which is imposed by
the governing body of the nation.
Therefore, it is to recommended to Parker that, he should consider all the formalities and also
develops a proper budget plan and analyse tha respective visa will fit in so developed budget. It is
being analysed after evaluating given case scenario that, application of Partner visa will suit at it best
and fits perfectly in caee study of Parker. It is to be belived that after undergoing various formalities
17 MIGRATION ACT 1958(Cth) s 195(1)(b).
18 MIGRATION ACT 1958(Cth) s 46.

and understanding terms and condition of respective applicant visa, Parker would have a stable life and
can also persure its desired goals and objectives in his life.

CONCLUSION:
On the basis of the reasons drawn above it can be summed up that Australian visa requirements
can be found in the Migration Act, 1958 and Migration Regulations, 1994
For the purpose of the scenario mentioned above, keeping in view the legislation and policy it
could be noted that Parker may be eligible to apply for a Permanent Protection Visa (Subclass
866) but might not be able to get a Student Temporary Class TU (Subclass 500) Visa due to the
abovementioned reasons.

BIBLIOGRAPHY:
A. Articles/Books/Reports
Fernandez Roger et al, Australian Migration Legislations Collection(Lexisnexis January 2021)
B. Legislation
Migration Act 1958
Migration Agents Regulations 1998
Migration Regulations 1994
C. Others
Admission policies at Victoria University (12 March 2021)
https://policy.vu.edu.au/home.php
Visa Details And Conditions", Immi.Homeaffairs.Gov.Au (Webpage, 2021)
"Guide To Refugee Law In Australia: Chapter 1", Aat.Gov.Au (Webpage, 2021)
https://www.aat.gov.au/AAT/media/AAT/Files/MRD%20documents/Guide%20to%20Refugee%20Law/
Chapter1_ProtectionVisas.pdf
"Immigration Detention In Australia – Parliament Of Australia," Aph.Gov.Au (Webpage, 2021)
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/
BN/2012-2013/Detention
Makela, Michelle, "New Student Visa Subclass 500 To Study In Australia", Gotocourt.Com.Au
(Webpage, 2021)
https://www.gotocourt.com.au/immigration/student-visa-subclass-500/
"Master Of Business (Accounting)", Victoria University | Melbourne Australia (Webpage, 2021)
https://www.vu.edu.au/sites/default/files/2021-international-course-guide.pdf
"Questions And Answers About Refugees & Asylum Seekers | Australian Human Rights Commission,"
Humanrights.Gov.Au (Webpage, 2021)
https://humanrights.gov.au/our-work/questions-and-answers-about-refugees-asylum-
seekers#endnote21