Immigration Law Assignment: Visa Validity and Agent Responsibilities

This assignment solution addresses key aspects of Australian Immigration Law. It begins by examining the validity of visa applications under Section 46 of the Migration Act 1958, detailing various conditions and criteria that must be met. The solution then explores specific visa types, including contributory parent visas and protection visas, outlining eligibility requirements and relevant legislation like Sections 35A and 36 of the Migration Act. Furthermore, it delves into the implications of visa condition 8503 (no further stay), discussing the limited circumstances under which this condition can be waived. The assignment also covers the code of conduct for registered migration agents in Australia, as outlined in the Migration Regulations 1998, focusing on agent responsibilities such as providing written advice, avoiding misleading advertisements, and managing client funds. The solution concludes by analyzing a case study involving a migration agent's breach of the code, identifying the violations and potential sanctions. The provided bibliography includes relevant legislation such as the Migration Act 1958, Migration Regulation 1994, and Migration Regulations 1998.

Running head: IMMIGRATION LAW
Immigration Law
Name of the Student
Name of the University
Author note

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Question 1
A
Section 46 of the Migration Act 1958 states that a visa application is only valid if it is
in relation to a visa of a class provided in the application, all requirements and criteria
provided by the section are satisfied, all charges which have to be paid in relation to that
particular class of visa application have been paid, any fees which is prescribed by the
regulations in relation to the visa have been paid, no provision of the act prevents the
application of the visa along with any other Commonwealth law and a few provisions of this
Act1. These section are namely Section 48 where the visa have been refused or cancelled
earlier, Section 48A protection visa has been cancelled or refused earlier, Section 161 non-
citizens holding criminal justice visa, Section 164D non-citizens holding enforcement visa,
Section 195 application being made out of time, Section 501E where the visa had been
refused or cancelled on the grounds of character. In addition section 46AA application of
grant of visa in relation to act based visas, 46A application made by unauthorised Maritime
arrivals2, S 46B application made by transitory arrivals3, Section 91E or 91G Safe Third
countries and CPA4, section 91k related to temporary safe haven visa and section 91P non-
citizens having access to protection by third countries5. The visa application is further invalid
with respect to subsection 2 if the person making the application is in the migration zone, the
condition imposed on the person under section 41(2)A have not been waived by the Minister,
the application is subjected to a condition which provides that the visa cannot be granted. In
relation to sub section 2A application for visa can be said to be valid in case it is related to an
application with respect to a prescribed class for the purpose of the subsection and with
1 Migration regulations 1958 (Cth) at Section 46
2 Migration regulations 1958 (Cth) at Section 46A
3 Migration regulations 1958 (Cth) at Section 46B
4 Migration regulations 1958 (Cth) at Section 91E AND 91G
5 Migration regulations 1958 (Cth) at Section 91P

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respect to the regulation the application has been taken to be made validly. Further criteria
may be prescribed by the regulations in relation to a specific class of visa to be valid. This
can be in relation to where the application is made, how it is made and at what time it has
been made. The Migration Regulations 1994 states through regulation 2.07 that all charges
needs to be paid in relation to the visa application6. The application has to be made in the
place prescribed by the regulations and in the mode which has been prescribed. The
application also has to be made through the particular forms for the specific types of visa
applications.
B
Applicants of a contributory parent visa either temporary or permanent are not
allowed to make an application for such visa if they have been barred from doing so. An
applicant might be barred from applying for such visa if they have been imposed with a “No
further Stay” condition through condition 8503 on the visa presently held by them. In
addition a person not holding a substantive visa and have been not granted a visa as their
application has been refused since they last entered Australia are also not eligible of making a
visa application for contributory parent visa. Therefore in the particular circumstances a
person whose application for partner visa has been refused and are not holding any
substantive visa are not eligible to apply for contributory parent visa7.
C
Section 35A and 36 of the MA, sets out Provisions in relation to the grant of
Protection Visa. As per section 36 of the MA a person for the purpose of being granted with a
protection visa must be a risk to the country as per section 4 of the Australian Security
Intelligence Organisation Act 1979 or has is danger to the security of the country or has been
6 Migration Regulations 1994 at Regulation 2.07
7 Migration Regulations 1994 at Schedule 8

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convicted of a serious offence. The legislation further provide that visa is provided to non-
citizens in case if it is not provided then the applicant may suffer serious harm but the country
has no obligation to provide such visa. The visa is also available when condition 8503 is
imposed8. In this case thus an application for protection visa can be made even if the person
is not a refugee and has not committed substantial crimes. However, providing such visa
would be in the discretion of the minister.
D
Condition 8503 cannot be waived at the time the visa is applied for. The condition is
related to no further stay which means as soon as the visa expires the holder has to leave
Australia. However there are very limited circumstances in which visa condition can be
waived by the minister. Firstly from the time the visa had been granted to the person
compelling and compensate situation have arisen over which the person had no control and
which have resulted in significant changes to the situation of the person. In case the minister
had refused to waive the condition previously and the minister is content that the situation
which have been discussed above are significantly different which had been considered in the
previous assessment then also the condition can be waived by the minister. The request has to
be made in writing to the minister for the waiver of such conditions. The department which
considers the application to the wavier must be satisfied that the developed circumstances
since the visa had been granted were not only compelling but also compassionate. The person
did not have any control whatsoever in relation to such newly developed circumstances. The
circumstances have resulted in a major change in the personal situation of the visa holder.
The visa condition cannot be waived automatically. Every request which is made for the
waiver is assessed in relation to the particular circumstances in relation the legal
requirements. However marriage or pregnancy or failure complete a course cannot be
8 Migration Regulations 1994 at Schedule 8 (8503).

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considered as circumstances which are beyond the control of the applicant and thus under
such circumstances visa condition 8503 would not be waived by the minister. The decision of
the minister to waive the condition or not cannot be reviewed under the administrative
tribunals9.
Question 2
The code of conduct for registered migration agents in Australia is set out under
scheduled 2, regulation 8 of the Migration Regulations 199810. As provided by section 2.8 of
the code the migration agent who has agreed to represent the client must provide such
confirmation to the client with respect to his instructions in a written form11. According to
Section 2.7 and 2.6 of the code the migration agent must provide a realistic advice relation to
the success of the application in writing to the client within a reasonable time12. Section 2.10
of the code clearly states that an agent must not engage in any misleading or false
advertisement including advertisement with guarantee success to the applicants13. According
to court 2.11 a migration agent must always incorporate migration agent registration number
while making an advertisement14. According to section 2.20 of the code it is the duty of
migration agents to provide the client with written advice with respect to the cost of each
charge and fee involved in the visa application15. According to Section 3.2A of the court it is
the duty of migration agents to provide the clients upon agreement to work from them a copy
of the consumer right and making a record that such copy has been provided16. It is also the
duty of migration agents under section 5.2 of the code to provide the clients about all this
vestments and charges to be charged by him along with the estimated time for such services
9 Migration Regulations 1994 Schedule 8
10 Migration Regulations 1994 at Schedule 2 Regulation 8
11 Migration Regulations 1994 at Schedule 2 Regulation 8 (2.8)
12 Migration Regulations 1994 at Schedule 2 Regulation 8 (2.6 and 2.7)
13 Migration Regulations 1994 at Schedule 2 Regulation 8 (2.10)
14 Migration Regulations 1994 at Schedule 2 Regulation 8 (2.11)
15 Migration Regulations 1994 at Schedule 2 Regulation 8 (2.20)
16 Migration Regulations 1994 at Schedule 2 Regulation 8 (3.2A)

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to be performed17. According to Section 313 of the Migration Act and section 5.5 of the code
it is the duty of every migration agent to provide the client with the statement of services. The
statement of services has to contain particulars about the services to be performed and the
charges which would be incurred in relation to the service18. When fees has been charged
from the client a clients’ account has to be opened by the migration agent according to
Section 7.1 of the code19. This account is different from the operating account of the agent the
amount. The amount which is deposited into such account has to be held by the agent until it
is required for the completion of the steps towards application or all the steps in relation to
the application and the services to be provided to the client have been completed. In the
provided circumstances Arthur has beached the code of conduct by stating in his
advertisement that all applications would be successful. In addition no registration number
was provided in his advertisement. Arthur did not provide Janice any statement of services
other than a receipt after charging $5000. There was no clients account opened by Arthur for
the purpose of depositing this money.
For the purpose of imposing this code the migration agent registration authority provide some
sanctions but the sanctions or not criminal in nature. The sanctions can extend from here
caution all suspension of the migration agent for a period or permanently. In the given
circumstances Arthur can be imposed with a suspension by the migration agent registration
authority.20
17 Migration Regulations 1994 at Schedule 2 Regulation 8 (5.2)
18 Migration Regulations 1994 at Schedule 2 Regulation 8 (5.5)
19 Migration Regulations 1994 at Schedule 2 Regulation 8 (7.1)
20Migration Regulations 1994 at Schedule 2 Regulation 8 (1.6)

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Bibliography
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Migration Regulations 1998 (Cth)