Migration Law: Visa Application Analysis and Case Studies

This assignment delves into Australian migration law, analyzing the application of relevant legislation and case law to visa applications. The analysis centers on two key scenarios: the first involves an applicant on a Prospective Marriage Visa facing domestic abuse and the subsequent application for a permanent visa, exploring the concept of "compelling reasons" and ministerial discretion. The second scenario focuses on an applicant seeking a temporary visa under subclass 820, where the applicant's husband has suffered an injury, and the assignment examines how post-application events can constitute "compelling grounds" for visa approval, referencing relevant cases like Babicci v MMLA and Waensila v Minister for Immigration & Anor. The assignment highlights the importance of proving hardship and the flexibility available to applicants who do not need to leave Australia to apply for a visa. The document also references relevant legislation and articles to support the analysis.

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

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MIGRATION LAW
Analysis to Q1
1. A minister is empowered under section 29(1) of the Migration Act to allow a non-citizen
to reside in Australia. To avail the benefits of section 54 of the Migration Act, the non-
citizen ahs to meet the criteria of section 55. To apply for a permanent visa. In the case of
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR1, it was
held that the Minister has to construe the events in front of her to ensure that there is no
breach of justice. To apply for permanent visa, the applicant has to prove that there are
“compelling reasons” and if the visa application is not allowed, the applicant shall suffer
hardship and irreparable loss. The “compelling reasons” need to be present before the
application for visa is made. For the waiver of the schedule, a ministerial discretion is
needed. The provision of cl 820.211(2)(d)(ii) 2is to give a greater flexibility to the
Minister with regards to schedule 3 and the aim is to relieve the applicant to satisfy the
conditions of 3001,3003 and 3004. In the case of Berenguel3, it was held that the clause
of 820.211(2)(d)(ii) is an ameliorating provision to consider the compelling reasons
which prevailed at that time. The meaning and extent of the explanatory statement do not
talk about the circumstances to be in existence at the time of application. The Minister
can give due consideration to the fact that if the visa application is not allowed, the
applicant will face severe hardship4.
2. Anh is on a temporary visa in Australia under the Prospective Marriage Visa. Her fiancé
Phiet had sponsored that visa to her. After a passage of 6 months, Anh applied for a visa.
After getting involved in drugs and alcohol, he started abusing Anh and apart from
1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR.
2 Migration Act, 1958
3 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
4 Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global perspective. Stanford
University Press, 2014.

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MIGRATION LAW
causing verbal abuse, he had also caused physical abuse to Anh while coming home in an
intoxicated state. There is a provision under Australian law that allows an applicant to
continue to stay under subclass 100 or 801. This happens in cases when the applicant is
holding a visa under subclass 300, 309 and 820. In the present case, Anh has to show that
she was married to Phiet and the marriage was a legal one and she was tortured and
abused by him.
3. Construing the paragraph (d) of the provisions of 3003 and 3004, the compelling reasons
of the applicant is accepted. Anh has a strong case for application of visa because she was
tortured and abused by her husband Phiet. The abuse is a valid ground which proves that
it is a compelling ground to permanently stay in Australia because Phiet had lost his job
and had started doing drugs. In the present case, another additional ground is that her
sister is a holder of permanent visa and therefore Anh can make a claim of permanent
visa by virtue of her sister being a holder of permanent visa. Her sister is the holder of
permanent visa under subclass 187. The hardships that Anh will face while having to
make an applicant from overseas is a compelling reason to allow the visa.
Analysis of Q2
To apply for temporary visa under subclass 820, the applicant has to show
“compelling grounds” that have been presented by him when the application for visa was
made5. The compelling grounds need to be proved in accordance with sh36. The waiver
than can be applied in cases of compelling grounds taking place after the visa application
depend on the discretion of the Ministers and how far they are ready to bend the rules to
ensure that the applicant does not face hardships while applying for the visa. In the
5 https://www.homeaffairs.gov.au/trav/visa-1/801-/Partner-visa-(subclasses-820-and-801)-document-checklist.
6 Migration Act, 1958

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present case what constitutes “compelling grounds” depends from case to case and the
admissibility of the same depends on the Ministers. The applicant has to prove that there
is financial crunch and that being the sole bread earner of the family, the family seeks the
assistance of the applicant and depends on him7. The applicant has to show that he is
suffering abuse or has health issues and therefore has to depend on the applicant. The aim
of providing compelling reasons is keeping in mind the welfare of the citizens and
avoiding any risking of compelling the applicant to travel overseas or to a faraway
country to file an applicant for visa. These are considered compelling grounds for getting
an application approved. The discretion is with the decision maker to consider the
submissions of the applicant and he will decide whether the applicant needs to satisfy the
relevant sch 3 criteria. The intention is to make the flexibility available to applicants who
do not need to leave Australia and apply for a visa8.
The word “compelling” is very vital to the case because her husband Fred has lost
his arm in a recent accident and therefore as a result has lost mobility. It is for Petra to
show that Fred is reliant on her for support and care and therefore if the applicant is not
allowed, she will face severe hardships. In this case, the financial and emotional hardship
that Petra will have to undergo in applying for the applicant should be a “compelling
ground” for allowing the application.
Initially, the problem regarding application of permanent visa for non-Australian
citizens under the “compelling reasons” ground was tough because the applicant had to
show that the incident had taken before the application and it was not post dated to the
application. Post the Babicci v MMLA (2005) FCAFC 779 case, Waensila v Minister for
7 Jones, Mark P. "Presidential and Legislative Elections." The Oxford Handbook of Electoral Systems. 2018.
8 Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library, 2016.
9 Babicci v MMLA (2005) FCAFC 77

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Immigration and Border Protection [2016] FCAFC 3210 was decided which relaxed the
condition and held that incidents occurring after the applicant would also be considered.
Therefore relying on this case, Petra can cite that she will face hardships if the application
is not allowed and her husband is relying on her for financial assistance. As has been held
in the Waensila case, Petra can mention her husband’s condition as a compelling ground.
10 Waensila v Minister for Immigration & Anor [2015] FCCA 2276

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Reference
Cases
Babicci v MMLA (2005) FCAFC 77
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR.
Waensila v Minister for Immigration & Anor [2015] FCCA 2276
Statute
Migration Act, 1958
Articles
Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global
perspective. Stanford University Press, 2014.
Jones, Mark P. "Presidential and Legislative Elections." The Oxford Handbook of Electoral
Systems. 2018.
Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library,
2016.
Website
https://www.homeaffairs.gov.au/trav/visa-1/801-/Partner-visa-(subclasses-820-and-801)-
document-checklist.