Migration Law Assignment: Australian Migration Law Analysis

This assignment delves into the intricacies of Australian migration law, examining the nuances of partner and visitor visas. It differentiates between the 309 and 820 partner visas, outlining eligibility criteria and application processes for both offshore and onshore applicants, including the conditions a...Read More

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

1MIGRATION LAW
Answer 1:
a. It is worthwhile to refer here that before July 2009, Partner visas in Australia were split
into Spouse visas belonging to subclasses 309/100 and 820/80, visas applicable for
couples in formal marriage and interdependencies visas for couples sharing same-sex
relationships1. However, after July, 2001 such distinction has been eliminated and the
nature of Interdependency visas has been renamed as Partner visa (309/100 and 820/801).
The major difference between the 309 and 820 visa is that the offshore applicants can
apply for 309 visas while the onshore applicants can apply for 820 visas. In this regard, it
is worth mentioning that in case of de-facto partners, the person must be in a formal
married relationship. However, in this context, the only exception available to offshore
Partner visa is that the person must apply such visa prior to marriage in order to make
sure that both the persons are formally married by the time the visa has been granted.
Therefore, 309 visas are for offshore applicants while 820 visas are for onshore
applicants2. In this regard, it is worth noting that, substantive visas can be held by any
onshore applicants. Therefore, in the present scenario, it can be stated that Charles will be
eligible for both 309 and 820 class visa. According to the provisions of Schedule 1 of the
Migration Regulations, a person would be eligible for applying both classes of visas in a
concurrent way by using the prescribed application form and paying the application
charge3.
1 Chung, Mona, and Bruno Mascitelli. "“We Still Don't Like You but We Want Your Money”: The Case of Chinese
Migration to Australia." Management Strategies and Technology Fluidity in the Asian Business Sector. IGI Global,
2018. 88-98.
2 Ghafournia, Nafiseh, and Patricia Easteal. "Spouse Sponsorship Policies: Focus on Serial Sponsors." Laws 6.4
(2017): 24.
3 Fozdar, Farida, and Susan Banki. "Settling refugees in Australia: achievements and challenges." International
Journal of Migration and Border Studies 3.1 (2017): 43-66.

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b. The Migration Act 1958(Cth) has established rules governing immigration for the
purpose of entering into Australia. In order to make valid application for a visa, it is
important to fill up the prescribed form of visa with the payment of required application
charges by satisfying the criteria that has been prescribed for the particular visa4. In this
regard, it is noteworthy to mention here that visas can be both temporary and permanent.
In order to make application for a temporary or permanent visa, a valid application has to
be made in writing depending upon the type of visa. Partner visas under class 309 and
820 once granted are valid for 2 years from the date of application5. However, these visas
are considered to be temporary and at the end of the tenure of two years, the applicants
can proceed to apply for permanent visas without making an attempt to apply for 100
visas for offshore applicants and 801 visas for onshore applicants. In order to make an
valid application for visa, it is important the both the applicants must have domiciled in
Australia and must have stained the age of majority i.e. 18 years in order to apply for a
valid partner visa6. However, in case, if the age of one of the applicant is below 18 years
then the guardian of such applicant must represent such applicant however such guardian
must be a citizen of Australia. According to the provisions of Section 46 of the Migration
Act 1958, an application for a visa is valid only if it is for a visa of a class that has been
prescribed in the application7. The nature of the application has to be such that it satisfies
the prescribed requirements under the provisions of the Section 46 of the Migration Act
1958.
4 Kuo, Mei-Fen, and John Fitzgerald. "Chinese Students in White Australia: State, Community, and Individual
Responses to the Student Visa Program, 1920-25." Australian Historical Studies 47.2 (2016): 259-277.
5 Lyneham, Samantha, and Kelly Richards. "Human trafficking involving marriage and partner migration to
Australia." (2014).
6 Murphy, Kerry. "A tale of two refugees." Eureka Street 26.12 (2016): 67.
7 Li, Yao‐Tai, and Katherine Whitworth. "When the State Becomes Part of the Exploitation: Migrants’ Agency
within the Institutional Constraints in Australia." International Migration 54.6 (2016): 138-150.

3MIGRATION LAW
c. According to the provisions of the Migration Act 1958, a visa application can be
considered to be invalid if it does not comply with the requirements of the Act as
prescribed8. In this regard, it is required on the part of the applicant to refund any fees
contained in Schedule 1or any fees paid in connection to such visa application which has
been declared by the higher authorities to be invalid. Furthermore, it can be stated that if
a visa application is invalid it cannot be considered as a ground of refusal and in such
cases, the applicant may file another visa application. In this regard, it is worth noting
that, from the very beginning the Migration Act 1958 has excluded assessments of
invalidity from consideration by the Migration Review Tribunal (MRT) or the Refugee
Review Tribunal (RRT). Therefore, if a visa application has been declared to be invalid
then the applicant is at the authority to challenge such determination by bringing a claim
for judicial review. It is worthwhile to refer here that, if the visa application has been
rejected on the ground of non-disclosure of information, misleading or incorrect
information, then in such case, the application of such applicant can be refused as a result
of failure to satisfy PIC 40209. If a person is refused a visa on the ground of invalidity,
then the further consequences faced by the applicant is regarding a provision which is
known as 48 bars which would be preventing such applicant from lodging further visa
applications in Australia. However, limited ranges of visas are available for parties which
can be lodged that falls under subclass 820 / 801 partner visas and protection visas.
Answer 2:
8 Murphy, Kerry. "Punitive truth behind Dutton's' sham marriage'furphy." Eureka Street 26.22 (2016): 40.
9 Nagai, Hayato, Pierre Benckendorff, and Aaron Tkaczynski. "Exploring the motivations of Asian working holiday
makers travelling to Australia." Tourism Studies 18 (2018): 43-53.

4MIGRATION LAW
The Visitor Visa Class FA subclass 600 has certain conditions attached to it. These
conditions can be emphasized as-
1. 8101 is related to no work visa.
2. 8201 is concerned with a visa permission of maximum three months study.
3. 8503 is associated with no further stay.
4. 8501 deals with health insurance.
5. 8558 deals with maximum twelve moths stay.
However, the Visitor Visa Class FA subclass 600 is applicable for those people who visit
Australia as tourists and for the purpose of conducting business activities. The Visitor Visa
Class FA subclass 600 is considered as a temporary visa. The streams under which this class
of visa falls can be emphasized as-
 Tourist stream: In order to apply for this visa, the person must be residing in Australia
while the visa has been decided. In order to apply for such visa outside the
jurisdiction of Australia, the person must be residing outside the jurisdiction when
such visa is being decided.
 Sponsored Family stream: For the purpose of applying this visa, the person must be
residing in Australia. In this regard, it is worth noting, that the person cannot apply
for another visa after arriving in Australia.
 Business Visitor stream: In order to apply for such visa, the person must be living
outside Australia.
 Approved destination status stream: For the purpose of applying such visa, the person
must be residing outside the jurisdiction of Australia.

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In the present scenario, the application of Roland was considered to be invalid because
the visa application did not comply with the requirements of the scheme under the
Migration Act 1958. In his application for achieving the Partner visa, the condition of no
further stay which is contained in 8503 was present in his application. Therefore, as a
result of it, the application for Partner visa got rejected. Therefore for the purpose of
making an application for valid visa, the person must have personally known and has met
the Australian sponsor physically. Both the partners must have applied for both 309 visas
and 820 visas10. In this regard, it is noteworthy to mention here that, 309 visas for
offshore applicants. The 820 visas are for onshore applicants. However, onshore
applicants have the authority to hold any substantive visa at the time of making the
application. In this context, it is worthwhile to refer here that, the conditions of No
Further Stay which are depicted in 8503 should not be attached to it.
Answer 3:
a. The Australian registered Migration Agents are bound to follow the regulations contained
in the Code of Conduct as developed by the Migration Agents Regulations 1994. In this
regard, it is worth mentioning that migration agents causing breach under the Act may
lose their registration. The Migration Agents Regulations 1994 has been covering the
provisions of professional conduct, obligation towards clients, relations between agents,
keeping records, prescribed fees and charges, termination of services, duties of migration
agents to their clients and client awareness. Therefore, in the present scenario, being a
registered agent under the Migration Agents Regulations 1994, such an agent is bound to
10 Thomson, Lisa, Monica O'Dwyer, and Ada Chan. "Hidden assets: partner-migration, skilled women and the
Australian workforce." (2016).

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follow the rules of Migration Agents Code of Conduct that has been already displayed for
the purpose of client communication. In this regard, it is worth stating that, if any of the
contraventions are breached by a Migration agent then he may cease to practice in future
and may lose his registration in the process. It can be noted that in some cases, the
migration agents could be terminated from their service for breach of conduct.
b. In case of any invalid application of visa has lodged, there are provisions under the
Migration Act 1958 that may require to provide information to the Department of
Immigration and Border Protection in relation to any incorrect information that has been
given in regard to the application for visa of the concerned person. Therefore, in case of
lodging of invalid visa application, the Migration Agent will be causing breach of
conduct. In regard to the wrong information given to the Department of Immigration and
Border Protection, the application of visa that has been declared to be invalid, reasonable
notice must be given for non-compliance however; there is an obligation to correct the
wrong information that has been provided. It is worth mentioning that, if an invalid
application is lodged which do not comply with the requirements of the Migration Act
1958, and then such visa shall be liable to be cancelled. Therefore, in the present
scenario, if an invalid visa application is lodged on the part of Ronald, then the code of
conduct of the Migration Agents Regulations 1994 shall be breached and the Migration
Agent involved in such process shall breach his duties. The Department of Border
Protection (DIBP) is at the authority to look into the matter from time to time. If the
criteria of valid application of visa are not met then such application is considered to be
invalid. As a result of it, it can create disastrous consequences upon the applicant for
which the migrant agent shall also be liable in case he has performed any breach of

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conduct. In this regard, the applicant does not have the option to apply for a bridging visa
for the purpose of remaining lawfully in Australia. The applicant shall also not have the
right to appeal to the Administrative Appeals Tribunal – Migration Review Division and
the Federal Courts for the purpose of making such application valid.

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References:
Chung, Mona, and Bruno Mascitelli. "“We Still Don't Like You but We Want Your Money”:
The Case of Chinese Migration to Australia." Management Strategies and Technology
Fluidity in the Asian Business Sector. IGI Global, 2018. 88-98.
Fozdar, Farida, and Susan Banki. "Settling refugees in Australia: achievements and
challenges." International Journal of Migration and Border Studies 3.1 (2017): 43-66.
Ghafournia, Nafiseh, and Patricia Easteal. "Spouse Sponsorship Policies: Focus on Serial
Sponsors." Laws 6.4 (2017): 24.
Kuo, Mei-Fen, and John Fitzgerald. "Chinese Students in White Australia: State,
Community, and Individual Responses to the Student Visa Program, 1920-25." Australian
Historical Studies 47.2 (2016): 259-277.
Li, Yao‐Tai, and Katherine Whitworth. "When the State Becomes Part of the Exploitation:
Migrants’ Agency within the Institutional Constraints in Australia." International
Migration 54.6 (2016): 138-150.
Lyneham, Samantha, and Kelly Richards. "Human trafficking involving marriage and partner
migration to Australia." (2014).
Murphy, Kerry. "A tale of two refugees." Eureka Street 26.12 (2016): 67.
Murphy, Kerry. "Punitive truth behind Dutton's' sham marriage'furphy." Eureka Street 26.22
(2016): 40.

9MIGRATION LAW
Nagai, Hayato, Pierre Benckendorff, and Aaron Tkaczynski. "Exploring the motivations of
Asian working holiday makers travelling to Australia." Tourism Studies 18 (2018): 43-53.
Thomson, Lisa, Monica O'Dwyer, and Ada Chan. "Hidden assets: partner-migration, skilled
women and the Australian workforce." (2016).