Immigration Law Assignment: Visa Regulations and Procedures Analysis

This document presents a comprehensive analysis of an immigration law assignment, focusing on the implications of visa conditions, application validity, and required procedures under the Migration Act 1958 and the Migration Regulations 1994. The assignment addresses specific scenarios involving a working holiday visa (subclass 417) and a potential application for a Medical Treatment (Class UB) (Subclass 602) visa. It examines conditions such as employment restrictions, study limitations, and restrictions on applying for further visas. The analysis includes the validity of visa applications, the procedural requirements for a medical treatment visa, and the conditions that must be met. The document meticulously references relevant sections of the Migration Act and Regulations, providing a clear understanding of the legal framework governing immigration in Australia. The assignment solution is a valuable resource for students studying immigration law, providing a clear and well-structured response to the assignment brief.

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

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Question 1
1)
The issue in this present scenario is whether there are any implications pertaining to the
conditions mentioned in Sally’s visa.
Section 41(1) of the Migration Act 19581 contains provisions with respect to the
conditions that might be attached to a particular class of visa under the Migration Regulations
1994 under schedule 82. Section 41(2) of the Act3 prohibits the holder of the visa from being
granted any substantive visa during his stay in Australia and after entering the territory of
Australia by virtue of attached to a visa. It also restricts holder of the visa attached with a
particular condition from indulging into any work, which is not specifically permitted under
that condition.
The conditions that are attached to a visa has been listed and explained in the Migration
Regulations 1994 under schedule 84. Condition 8547 attached to a visa requires the person
holding the visa not to be employed by a single employer for a period exceeding six months5.
However, the same can be ignored if the person holding such a visa has obtained the written
permission from the Secretary. Condition 8548 attached to a visa requires the person holding
the visa not be involved in any course or training of studies that will be continuing for a
period exceeding four months within territory of Australia6. Condition 8503 attached to a visa
requires the person holding the visa to not be granted with any substantive visa after the
holder has entered Australia and during his stay in Australia7.
1 The Migration Act 1958 (Cth), s41(1)
2 The Migration Regulations 1994 sch. 8
3 The Migration Act 1958 (Cth), s41(2)
4 The Migration Regulations 1994 sch. 8
5 The Migration Regulations 1994 sch. 8
6 The Migration Regulations 1994 sch. 8
7 The Migration Regulations 1994 sch. 8

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Under section 41(2A) of the Act8, the minster is empowered to waive any conditions that
has been attached to visa under certain specific circumstances. The waiver is required to be
provided in writing.
In the present situation, Sally has been granted with a working holiday visa subclass 417
visa, which was valid for twelve months. Her visa has been attached with the conditions
8547, 8548 and 8503. This means her visa will subject her to these conditions. By virtue of
condition 8547, she will be prohibited from being employed by a single employer for a period
exceeding six months. However, she can ignore the same, if she can obtain the written
permission from the Secretary. By virtue of condition 8548, she is restricted from being
involved in any course or training of studies that will be continuing for a period exceeding
four months within territory of Australia. By virtue of condition 8503, she will be prohibited
from being granted with any substantive visa after the holder has entered Australia and during
his stay in Australia.
Under section 41(1) of the Act9 Sally will be subjected to the conditions that has been
attached to her visa. Under section 41(2)10, she will be required to refrain from engaging into
any employment, which has been prohibited by the conditions attached to her visa. She will
not be permitted to apply for any substantive visa after she has entered Australia and during
her stay in the same. However, she can apply for the same in case she can obtain a written
permission from the secretary.
Hence, it can be concluded that, Sally will be subjected to the conditions abovementioned.
2)
The issue in this present scenario is the status of her initial application for a visitor visa.
8 The Migration Act 1958 (Cth), s41(2A)
9 The Migration Act 1958 (Cth), s41(1)
10 The Migration Act 1958 (Cth), s41(2)

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Under section 46(1A) of the Migration Act 195811, any application in relation to a visa will
be rendered to be invalid in case the person making the application is situated in the
migration zone. Such an application may also be construed to be invalid if the visa that the
applicant has been holding a visa since his stay and entrance in Australia was attached with a
condition, which renders the application of a further visa to be invalid under section 4112. Any
such application will be rendered to be invalid if not authorised by the minster in writing. It
can also be construed to be invalid if the applicant is not entitled to be granted such a visa.
Section 46(2) of the Act13 will construe a visa application to be valid in case the visa has
been applied with respect to a prescribed class. Section 46(2A) of this Act14 prescribes an
application with respect to a visa to be invalid if it has not been waived by the minister or it
does not comply with the requirements. Again, Condition 8503 attached to a visa requires the
person holding the visa to not be granted with any substantive visa after the holder has
entered Australia and during his stay in Australia.
In the present situation, Sally has been holding a working holiday visa (subclass 417),
which was valid for twelve months. However, her visa was attached with the conditions
8503, 8548 and 8547. She has arrived in Australia and has been staying there for eleven
months. The condition 8503 in her visa will prohibit her from being granted with any
substantive visa after she has entered Australia and during her stay in Australia. A person
applying for a Visitor (Class FA) (Subclass 600) visa is required to be located outside
Australia while making an application for the same.
Sally has made an application for a Visitor (Class FA) (Subclass 600) visa for the purpose
of extending her stay in Australia for the purpose of employment as she has not been able
find any suitable position as a graduate in Canada. However, as her visa has the condition
11 The Migration Act 1958 (Cth), s46(1A)
12 The Migration Act 1958 (Cth), s41
13 The Migration Act 1958 (Cth), s46(2)
14 The Migration Act 1958 (Cth), s46(2A)

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8503 attached to it, she will not eligible for making an application with respect to a
substantive visa. This will render any visa application that has been made by her to be invalid
under section 46(1A)15. This is because the provision contained in the section requires any
visa application made by her to be invalid as the visa she has been holding since his stay and
entrance in Australia was attached with a condition, which renders the application of a further
visa to be invalid under section 4116. Again, section 41(2A)17 will render an application for
the visa that has been applied by Sally to be valid if the same has been made accompanied by
the waiver extended by the minister.
Hence, it can be concluded that the visa application that has been made by Sally will not
be construed to be valid if she does not avail the permission of the minister for the same.
3)
The Migration Regulations 1994 under schedule 1 under item 1214A18 has provided for
the procedural requirement that are needed to be followed in order to make a valid
application with respect to a Medical Treatment (Class UB) (Subclass 602) visa. The
applicant of such a visa needs to complete form 48ME34, which has been specified by the
Minister. The submission of the same needs to be carried out with payment of a visa
application charge of $285 along with other surcharges that are incidental to the application
of the visa. Any submission of the application for such visa can be made using the mail, the
fax or the courier services. The application needs to be submitted in accordance with the
manner and in the place that has been mentioned by the minister. Any person who is located
in Australia or is presently residing in Australia has the eligibility of applying for a visa under
this class with a view to avail medical treatment in Australia if the person making the
application is not in the immigration clearance. The person who does not hold any
15 The Migration Act 1958 (Cth), s46(1A)
16 The Migration Act 1958 (Cth), s41
17 The Migration Act 1958 (Cth), s41(2A)
18 The Migration Regulations 1994, sch. 1 item 1214A

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substantive visa and is required to submit certain documents along with the visa application
for availing the Medical Treatment (Class UB) (Subclass 602) visa. There are certain
documents that the minister may specify by way of legislative instrument needs to be
submitted by the applicant along with the visa. The person making an application for this visa
is required to submit Form 1507 along with his visa application. This form needs to be
completed and signed by medical practitioner who is registered.
In the present situation, Sally needs to comply with item 1214A19 for making a valid
application of the Medical Treatment (Class UB) (Subclass 602) visa. Sally needs to
complete form 48ME34, which has been specified by the Minister. She must make a payment
of a visa application charge of $285 along with other surcharges that are incidental to the
application of the visa. Sally must make the visa application by way of mail, fax or courier
services. She will be requiring to submit Form 1507 along with his visa application. This
form needs to be completed and signed by medical practitioner who is registered.
Hence, Sally needs to follow these procedures to make a valid application.
4)
The Migration Regulations 1994 under schedule 220 has provided for the requirements that
are required to be complied with while making an application with respect to a Medical
Treatment (Class UB) (Subclass 602) visa. The persons who desires to make an application in
relation to this visa needs to comply with the requirement contained in this part of the
regulations. However, these essentials can be ignored if the person applying for such a visa
belongs to a family unit of a holder of a Subclass 602 visa or a Subclass 685 (Medical
Treatment (Long Stay)) visa. The first essential that requires to be complied with while
making an application with respect to this visa is that the applicant is required to be seeking a
19 The Migration Regulations 1994, sch. 1 item 1214A
20 The Migration Regulations 1994, sch. 2

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medical treatment within the territory of Australia. The treatment should not be related to
surrogacy. The treatment for the purpose of which the visa has been applied for is to be
arranged and the arrangements needs to be completely done. The person should not have any
disease that might pose a threat to the public health. The applicant must have the capacity to
bear the cost of the treatment that has been sought for by virtue of the visa application. The
cost of the treatment should not become a liability of the Commonwealth. It needs to be
furnished by the applicant that the cost of the treatment with a view of which the application
of the visa has been made will be the liability of the concerned government and no liability
will be conferred upon the Commonwealth.
In the present situation, Sally would be required to comply with the requirements for
making an application with respect to a Medical Treatment (Class UB) (Subclass 602) visa
that has been provided under Migration Regulations 1994 under schedule 221. Again, Sally
can ignore these essentials if she belongs to a family unit of a holder of a Subclass 602 visa or
a Subclass 685 (Medical Treatment (Long Stay)) visa. While making an application with
respect to this visa, Sally is required to be seeking a medical treatment within the territory of
Australia. Sally has suffered from head trauma and the same lead to her being admitted in the
hospital. Owing to the severe injuries that she has been subjected to, she will be required to
be admitted in the hospital for a minimum period of six months. So this can be construed to
be a valid reason for seeking treatment for making an application under part. The treatment
for the purpose of which the visa has been applied for is to be arranged and the arrangements
needs to be completely done. Sally has already been admitted in the hospital for the head
injuries she has suffered and the treatment has been continuing, which can be construed to be
valid arrangement of the treatment that has been mentioned for the purpose of making the
visa application. Sally does not have any disease that might pose a threat to the public health.
21 The Migration Regulations 1994, sch. 2

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Sally can make a valid application with respect to the visa abovementioned if she has the
capacity to bear the cost of the treatment that has been sought for by virtue of the visa
application.
Hence, Sally can make a valid visa application with respect to the Medical Treatment
(Class UB) (Subclass 602) visa if she satisfies these requirements.
Question 2
Breach
In the present case, the migration agent namely Mr Sam Abedi has been alleged to have
breached his professional conduct that he has a duty to conduct maintain by virtue of the
Migration Agents Regulations 1998, under Schedule 222. This present disciplinary proceeding
has been instituted against him by virtue of two complaints namely CMP-33370 and CMP-
34121.
The agent was in violation of Clause 5.5 contained in the code as he has failed to furnish a
statement of services to the client within 28 days as has been provided in the code. The agent
has failed to make the onshore Partner Visa Application (subclass 820/801) properly as he
has made errors in the application by including the name of applicant’s mother as a
dependant and this has led to the refusal of her visa application. As a consequence, the
mother of the applicant has been denied a temporary visa as her Partner Visa has been
withdrawn. Moreover, the agent has not submitted the Form 40SP, which was been required
to be submitted for making a valid application for a Partner Visa. In addition, the agent has
failed to ensure the best interest of the client and has been inclined to serve the best interest of
the sponsor. Again, the agent has failed to provide the applicant with a copy of the
application.
22 The Migration Agents Regulations 1998, Sch. 2

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In the other complaint, the agent has received $4555.00 for the purpose of lodging a
Ministerial Intervention request when he has been served with a notice from the Department
regarding his application for Safe Haven Enterprise Visa (SHEV) has been rendered invalid.
In addition, he has been forced to put his signature in an agreement formed with the agent
with respect to the Ministerial Intervention request.
In this furtherance, a notice has been served upon the agent under section 308 of the Act23
and under section 309 of the Act24. The agent has been requested to furnish the complete files
with respect to the client. The Authority has notified the agent regarding the cancellation of
the registration pertaining to the agent owing to these breaches. The agent has been alleged to
have contravened clauses 2.23, 2.1, 2.4, 2.9A, 2.8, 3.1, 5.2 5.5, 6.3, 6.1, 6.2, 10.1B, 9.3, 7.2,
7.3 of the Code25.
Factors
The proceeding has been instituted for making a cancellation of the agent’s registration
under section 303 of the Act26. This section has empowered the Migration Agents
Registration Authority to cancel the registration of the migration agents if they can be made
satisfied that the migration agent is a person who does not have integrity and cannot be
construed as proper and fit for the purpose of extending assistance with respect to
immigration. The power to make a cancellation of the registration with respect to a migration
agent is also applicable if the agent has violated any of the provisions of the code of conduct
as contained under section 31427.
In making such an order of cancellation, the agent has been served with a notice under
section 308 and 309 of the Act28. The agent has been notified under this section to provide a
23 The Migration Act 1958 (Cth), s308
24 The Migration Act 1958 (Cth), s 309
25 The Migration Agents Regulations 1998, Sch. 2
26 The Migration Act 1958 (Cth), s 303
27 The Migration Act 1958 (Cth), s 314
28 The Migration Act 1958 (Cth)

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written submission regarding his side of the complaint. Under section 309, the agent has been
asked to furnish an explanation as to why such a cancellation of his registration will not be
just.
The agent has breached the code of conduct provided under schedule 2 of the Migration
Agents Regulations 199829. He has not acted in a way to ensure the integrity of the profession
he has failed to ensure the best interest of the client. Moreover, he has not maintained the
files and the records of the client in a prudent manner, which has resulted in lodging of
application, which was erroneous. He furnished certain statements in the application of the
visa which in his opinion was not true. The code of conduct provides for certain professional
standards that the migration agents are required to comply with. Under clause 2.1 of the code
of conduct mandates the migration agents from acting in a way which can be construed to be
incompliance with the laws relating to migration and to ensure the legitimate interests of the
clients. The agent in his dealings with the client needs to be competent, fair and diligent30.
Clause 2.23 of the code requires the agent to adopt all reasonable measures to ensure the
integrity and the reputation of the profession relating to migration advice31. Under clause 5.5,
the agent is under an obligation to furnish the details of the payments that they are expecting
to receive for the services they have been rendering to the clients32. Until the work for which
the money has been paid is complete, the agent is required to keep a certain amount of money
that the client has paid in the account of the client under clause 7.233. The also prohibits an
agent from deceiving or misleading the Authority by withholding information under clause
2.934.
29 The Migration Agents Regulations 1998, Sch. 2
30 The Migration Agents Regulations 1998, sch. 2 cl. 2.1
31 The Migration Agents Regulations 1998, sch. 2 cl. 2.23
32 The Migration Agents Regulations 1998, sch. 2 cl. 5.5
33 The Migration Agents Regulations 1998, sch. 2 cl. 7.2
34 The Migration Agents Regulations 1998, sch. 2 cl. 2.9

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Ways to Avoid the Breach
The migration agent would have avoided the circumstances that has followed in the
disciplinary proceeding by acting in compliance with the code of conduct. He must have
maintained the reputation and the integrity of the profession and has acted in a diligent and
competent manner. He must have rendered services properly and adequately for which he has
received payment and must have ensured the interests of the clients being properly served. He
must also have maintained proper accounts and records of all the payments he has received
and the transactions he has made with the clients. This would have helped him to avoid the
disciplinary actions that he has faced and would have saved him from cancellation of his
registration. He was required to maintain a proper file management method to avoid the
errors that he has made with respect to the application.

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Reference list
The Migration Act 1958 (Cth)
The Migration Agents Regulations 1998
The Migration Regulations 1994