LML6002 Australian Migration Law: Visa Application Advice Letter

This assignment is a letter of advice concerning a client's visa application under Australian migration law. The student analyzes a scenario where a client overstayed a Visitor Subclass 600 visa and seeks to apply for a Student Subclass 500 visa. The advice letter explains the implications of overstaying, the impact of visa conditions 8503 and 8101, and the restrictions imposed by Schedule 1, clause 1222(4) of the Migration Regulations 1994. The letter explains the client's unlawful status and the risks associated with overstaying, including potential detention and deportation. The assignment also includes an analysis of the responsibilities of a migration agent, referencing the Migration Act 1958 (Cth) and the Migration Agents Regulations 1998, highlighting breaches of the code of conduct regarding fee agreements, client updates, and confidentiality. References to relevant legislation and regulations are provided to support the advice and analysis.

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

1MIGRATION LAW
To
Ms Anna Walker,
Australia.
Subject: Letter to advice about Visa application.
Dear client,
We are obliged that you have trusted us and given us an opportunity to provide you
guidance regarding visa application. We heartily want to thank you for paying visit to our office.
In continuation of the discussion we had in our last meeting, it is seen that you have been
overstaying your Visitor Sub Class 600 visa.
We understand that you came to Australia from Estonia with the Visitor sub class 600
visa and it had already expired one week before. So you are overstaying in Australia. It also
reveals that at present you do not have any Australian visa. Moreover, you want to pursue
masters course in graphic design, for which you want to apply for student sub class 500 visa.
When we were going through your previous visa, we discovered that there are two
conditions applied on it. The conditions are 8503 and 8101. Both of these conditions have
significant effect of the visa holder. Moreover, these two conditions must be followed during the
staying period under the said visa else there lies a probability that the visa may get cancelled.
According to 8101 condition, you are not permitted to work in Australia. 8503 condition on the
other hand, provides that ‘no further stay condition’1. It means that you do not have the eligibility
1 "No Further Stay Waiver", Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visa-
conditions-subsite/Pages/no-further-stay-waiver.aspx>

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to make application for visa other than the protection visa2. Moreover, the imposed 8503
condition can be waived by the Minister of the Immigration Department if any exceptional
situation arises which is beyond your control3.
But it is unfortunate, that you are not eligible for applying for the student 500 sub class
visa4. During your visit to our office, you mentioned that your friend Isabella was in similar
conditions like you and was able to get a student visa as she overstayed her visa. However, every
person has different situation in her life and the Immigration department considers the cases of
the visa applicants separately. You are not allowed to apply for student 500 visa mainly due to
two conditions; firstly, due to the 8503 condition in your previous visa and secondly due to
Schedule 1, clause no 1222(4).
The first condition does not allow you to apply you any visa other than protection visa.
However, you do not satisfy the conditions required to be fulfilled for this visa. This protection
visa is usually given to the refugees who are seeking asylum in Australia due to fear of
persecution in their country of origin on the basis of various types of discrimination.
Further, Schedule 1, clause no 1222(4) of the Migration Regulations 1994, also does not
permit you to make application of student 500 visa. This is because, as per this, this regulation is
applied only for the people who had held student visa or special purpose or temporary domestic
visa before making application. Then only, one can apply for the student visa within a period of
28 days after the last visa ceased to exist5.
2Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
protection-866>.
3 Migration Regulations 1994 r 2.05(4).
4 Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
student-500>.
5 Migration Regulations 1994 Sch1, Item no 1222(4).

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Further, we want you to have a clear idea about your present position in the country. You
are over staying here as your visa has expired already. It is unlawful to stay in Australia after the
expiry of the visa as per the said Act6. When you are granted with a visa, you are expected to
follow the conditions and terms mentioned under that visa and to leave the country before your
visa expires. Since you are now staying in Australia you are at a position of very high risk as
your stay is unlawful. An unlawful resident can be even detained by the concerned authority and
deported back to the country of origin. The government can even recover the cost of doing this
from him also. Hence, you are advised to take immediate measures within 28 days from when
your last visa expired else you can face serious results. As per the Act, an Immigration officer
can even detain you for this7. Moreover, due to this, you can also face serious challenges in your
future visa application due to the risk imposed by your overstaying8.
Thus, we would suggest you to contact with the Immigration department and talk to them
regarding the waiver of the condition present in your last visa. You may also visit us if you need
any other clarifications.
Thanking you.
Answer 2:
A migration agent is required to abide by the clauses and sections enumerated in the
Migration Act 1958 (Cth) and the Migration Agents Regulations 1998 - Schedule 2 Code of
conduct9. As per clause 2.810 of the Regulation, it is the duty of the Migration Agent to keep his
6 Migration Act 1958 (Cth) s14(1).
7 Migration Act 1958 (Cth) s189(1).
8 Migration Regulations 1994 Sch4, cl 4011.
9 Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
10 Migration Agents Regulations 1998 - Schedule 2 Code of conduct clause 2.8.

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client well informed and notified regarding the updates of the case of his client. Moreover, it also
comes under his duty to inform the client in written document about the result of the case of the
client. Clause 3.111 again enumerates that the agent must preserve the confidentiality of his
clients and clause 3.212 states that he must not reveal the confidential information of the client
without permission by the client in writing. Again clause 5.213 of the Regulation provides that the
agent must give the client an Agreement for fees and services together with the fees detail related
to the service provided by him.
As per the facts given about the present case, it can be seen that the agent took a fees of
200 $ from Anna for which she was not given any Agreement for fees. It breached clause 5.2 of
the Regulation. Further, it is seen that the agent failed to give regular updates and final result of
Isabella’s visa application. It breached clause 2.8. In addition to these, the agent informed Anna
about the outcome of Isabella’s case without seeking her written permission. This again breached
clauses 3.1 and 3.2 of the Regulations.
11 Migration Agents Regulations 1998 - Schedule 2 Code of conduct clause 3.1.
12 Ibid., clause 3.2.
13Ibid., clause 5.2.

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References:
"No Further Stay Waiver", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visa-conditions-subsite/Pages/no-further-stay-waiver.aspx>
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/protection-866>.
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/student-500>.
Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>.
Migration Act 1958
Migration Agents Regulations 1998
Migration Regulations 1994 Schedule 2
Migration Regulations 1994 Schedule 4