You must use correct legal citation at all times. Use the ‘Australian Guide to Legal Citation’ (AGLC) Third Edition and ‘Guide to Legal Research and Citation’ which are available on your course site. All answers should be supported by reference to the relevant provisions of the Migration Act 1958 (Cth), Migration Regulations 1994 (Cth), other relevant legislation, case law and/or policy. Penalties apply for exceeding the word limit. Please see the ‘Course Study Guide’ for details
QUESTION 1:
So far in the Course we have worked through Client File Activities 1 – 3. This question forms Client File Activity 4. To answer this question, make sure that you have worked through the earlier Client File Activities
Scenario continues on from Client File Activity 3
You receive a call from Walter. He is extremely relieved as he has just been informed that the Minister for Immigration and Border Protection has waived the condition 8503 on his Visitor Visa. Walter is still holding his Visitor Visa which is valid for another month.
Walter and Skylar now want to go ahead with their Partner visa application. Based on our advice, they have registered their relationship in NSW with the NSW Registry of Births, Deaths and Marriages.
Walter provides you with further information on their relationship. This includes documentary evidence to suggest that they have kept in constant contact since Skylar came back to Australia, photos of their time together in Sydney, and contact details of plenty of mutual friends who can attest to their relationship.
Walter provides you with further information on their relationship. This includes documentary evidence to suggest that they have kept in constant contact since Skylar came back to Australia, photos of their time together in Sydney, and contact details of plenty of mutual friends who can attest to their relationship.
(a) The difference between visa validity and visa eligibility;
(b) The process of obtaining a permanent partner visa; and
(c) The criteria for lodging a valid application for an onshore Partner visa.
NOTE: Your file note does not need to address the criteria for the grant of the visa.
QUESTION 2:
George Clowny is a principal migration agent working for a firm ‘007 Migration Agents’. He has two migration agents working for him and he has been having some financial issues. Amal is from Syria and has been in Australia on a Class UC Subclass 457 visa which expired one week ago. She tells George that she has been in Australia for a bit over four years. She had an application for a Class EN Subclass 186 visa refused one year ago.
George Clowny is a principal migration agent working for a firm ‘007 Migration Agents’. He has two migration agents working for him and he has been having some financial issues.
Amal is from Syria and has been in Australia on a Class UC Subclass 457 visa which expired one week ago. She tells George that she has been in Australia for a bit over four years. She had an application for a Class EN Subclass 186 visa refused one year ago. Amal is extremely anxious and asks what her options are.
George tells her: ‘Look, you have a problem with the s 48 bar, but we can make an application for a protection visa. I’ve had lots of experience with protection visa cases from Syria. I reckon I can get you a visa. Everyone knows all the Syrians are refugees. You just need to pay $1,000 up-front and the rest when you get the visa’
Amal questions whether she has any grounds for a protection visa, to which George replied: ‘Trust me, I’m a professional and I know what I am doing’. Amal pays George $1,000 before she leaves the office that day. George tells one of his agents to quickly lodge the visa application and deposits the money straight into his personal account before going on holiday for two (2) weeks.
A month later, George receives a notification from the Office of the Migration Agents Registration Authority (OMARA) that Amal has lodged a complaint against him for breaching the Migration Agent’s Code of Conduct. Amal was upset as the visa application was refused on the grounds that she had no claims for protection. The decision record suggested that the claim was potentially vexatious
Answer the Following Questions:
(a) Has George breached any obligations under the Code of Conduct for registered migration agents? Explain;
(b) What powers does the OMARA have to discipline George if he has breached the Code of Conduct?]
QUESTION 3:
Saafi Khan, a citizen of Nepal arrived in Australia on 16 July 2016 holding a Class TU Subclass 500 visa. He was to study a Master degree by Research in Engineering at the ANU and the visa is valid for 12 months. This visa is subject to a number of conditions including 8105, 8202, 8501, 8516, 8517, 8532 and 8534.
A week ago, there was a big earthquake in his home city of Kathmandu. The earthquake has left the city devastated and human rights organisations have reported a lack of water and food. There have also been outbreaks of violence and looting within the city. Reports suggest that the relief effort is likely to take months, if not more than a year. Safi is scared to go home. Saafi tells you has he has spoken to a local engineering firm — Rearden Industries — and they have agreed to sponsor him on a Permanent Subclass 186 visa once he completes his Masters.
Saafi has not made an application for any other visa since he has been in Australia.
Write a letter of advice to Saafi explaining:
(a) The steps he needs to take in order to make a valid application for a Class EN Subclass 186 visa; and
(b) The criteria for lodging a valid application for a Class EN Subclass 186 visa.
ASSESSMENT CRITERIA – ASSIGNMENT 2
Clearly identifies and discusses the issues raised by the facts and reaches accurate conclusions Accurately applies the relevant migration legislation, case law, policy and the Code of Conduct to the facts provided Justifies answers by clear reference to the relevant facts and law Demonstrates a sound understanding of the procedures for making a valid visa application Presents arguments and information clearly and logically using professional English Correct citation of migration legislation, case law and/or policy Presents information in a professional and businesslike manner.
(1) A – The Difference Between Visa Validity and Visa Eligibility:
Visa validity refers to the length of time till which the foreign national is allowed to reside in the country of visit. In case the person fails to leave the country, then the person is considered to have overstayed the visa and it is illegal to do in most countries. The person is now an offender in the eyes of the law and is liable to punitive legal action. Visas are generally issued for a period which is mentioned on the visa document either in form of time period (number of days / months / years) from date of issue or as a specific end date.
Visa eligibility refers to the validity of reason and criteria of a foreigner required to be met by the law of the visiting country to avail the service. This is directly linked to the purpose of visit of the foreigner to the visiting country. The government of the visiting country will always require knowing the reason for the visit, as the conduct of the foreigner on their land will always affect the foreign relations of the counties in question[1].
Also the eligibility conditions may require the visitor to have a certain cleanliness of track record in the country of nationality. Persons with criminal or fraudulent background may not be granted a visa on the assumed pretext that they may do the same in the visiting country, causing harm. Just like nobody wants to let a thief into the house knowingly, the eligibility of visa checks the background of the person on similar spirits.
[1] Border, Employer Nomination Scheme (subclass 186)
(1) B – The Process of Obtaining a Permanent Partner Visa:
Partner visa is issued to people who wish to come to Australia for the purpose of marriage. It is applicable for persons who are already married to an Australian citizen or a Permanent resident, or a New Zealand Citizen. Even people who are planning to get married to the aforementioned class of people are eligible to apply for this visa. The Australian partner needs to fund the visitor for a period of two years and the visiting partner needs to be an adult. For persons already married to, or are in a relationship with the aforementioned class of people, the government first allows a temporary visa for two ears, which is then converted in to permanent one[1].
The partner visas can be of the following types:
Marriage visa – this is applicable for partners who are already married and want to bring their non-Australian partner in the country. They must provide proof of marriage and be living together.
Prospective marriage visa – this is applicable for nine months to allow a person to enter into Australia and marry a person of choice within the time frame. Post marriage the person can apply for a Partner visa.
De-Facto visa – this is applicable for persons who are in a relationship with the aforementioned class of persons and are sponsored by the Australian partner. Post marriage they can apply for a partner visa.
[1] Border, Permanent Partner Visa
The process of application of Partner visa is as enumerated below:
Evidence of continuing relationship must be produced to the authorities along with commitment for life. The two partners must be living together and meet the health criteria required. Financial soundness of the partners needs to be established, along with commitment that partners wish to setup a household together and share the responsibilities. Also it is required to be declared as to how the immediate societies of the partners (friends and family) perceive the marriage along with personal commitment to each other, including knowledge of personal history and future aspirations.
De Facto Visa process varies a little as the partner has to first apply for temporary visa with a commitment of continuing the relationship for minimum of 12 months, and then after fulfilment of the period apply for Partner visa.
(1) C – The Criteria for Lodging a Valid Application for an Onshore Partner Visa:
Onshore Partner Visa can be applied only by persons who have already arrived and are residing in Australia on a different visa and now living with a partner in De Facto or Married state with any of the three classes of people allowed by law. The criteria is that the partner needs to be already married and have a temporary visa for two years and on permanent basis if waiting period is over[1].
[1] australiaforum, Visa Valid Application
Onshore partners need to apply for Partner visa subclass 805 and 801 and offshore partners for subclass 309 and 100. The partners have to marry legally as per Australian law (even if the marriage happened outside Australia) and apply for the visa.
(2) A – Has George Breached any Obligations Under the Code of Conduct for Registered Migration Agents? Explain:
George has made a promise to Amal of converting her from a Temporary Skilled Worker visa to a Refugee visa based on her country of origin. There some clear observations here. Amal has been in Australia for last 4 years and she had left Syria much before the crisis and can no way qualified as a refugee. Moreover the charges he had demanded and the nature in which he treated the funds were in clear contravention of the Code of Conduct of the Immigration Agents[1].
He has violated the Code on grounds of interaction with the clients
He has violated the Code on grounds of fees, charges and the nature of financial transactions
It is yet to see if he violates the stipulate of the responses to be made to the complaint filed against him.
George has failed under sections 2.1A c & d – referring to conflict of interests, 2.1B – suppression of facts, 2.2 b – akin to receiving an unfavourable payment against an advice, under 2.7 a, b & c – of providing wrong opinion, 2.10 a, b & c – of providing false promises.
[1] Austlii. Migration Act 1958 – Sect 48
he has grossly violated the code under the fees and charges section, regarding fairness of fees 5.1, 5.2. (c) – by not giving a written agreement, 5.4 – by depositing the “fees” in his personal account and also 5.5 (a) – of accepting a fee before agreement.
Gorge has violated 6.1 of keeping written records of client communications as his intentions were fraudulent[1].
He has faltered under section 7.1 (a) for not transacting through the operating account and 7.1 (b) of accepting cash and not through client account. He has violated section 7.4 as well.
George has violated entire Part 11 by fooling his client instead of creating client awareness[2].
(2) B – What Powers Does the OMARA have to Discipline George if he has Breached the Code of Conduct?
The OMARA was setup to regulate the process of immigration to Australia. The OMARA is a regulatory body that oversees proper implementation of the Migration Act 1958 and the Migration Regulations 1994. The organisation is a part of Department of Immigration and Border Protection of the Australian Government. It acts as a regulatory body for the Migration Agents in Australia and keeping a vigil on them, while they operate within the ambits of the two legislations mentioned above. Despite their freedom to do business, the Code of Conduct for the Immigration Agents sets a detailed guideline for the agents to follow. This code mainly regulates the business ethics part of the agents’ activities. The purpose of the Code is to debar unscrupulous agents from making false promises and duping
[1] Mara, Code of conduct & practice guides
[2] Mara, Make a complaint about an agent
the immigrants. This prevents financial loss to the immigrants, and prohibits creation of a pool of illegal immigrants inside Australia[1].
The OMARA can carry out a conduct of review for George and issue summons to him to explain his actions of violating the Code of Conduct with reasons thereof. It may impose a fine on George for consciously not complying with stipulates of the code. Moreover, if the agent has been found conducting serious breach, the license of the agent may be cancelled in conjunction with the Department of Immigration and Border Protection.
(3)A – The Steps he Needs to Take in Order to Make a Valid Application for a Class EN Subclass 186 Visa:
To
Safi Khan
1/1 Boulevard Avenue
Perth
Steps for making a valid visa application for Class EN subclass 186 visa
Dear Safi,
Please note that as per your application, you have mentioned that your present visa Class TU Subclass 500 is due to expire by end of this year. You have expressed the desire to apply for Class EN Subclass 186 visa. You are currently on a student visa, but is allowed to seek employment under the same. Your employer Rearden Industries have agreed to sponsor you.
[1] Border Immigration Law
To apply for the 186 visa, you are required to make an application in the required format on the relevant website of the Department of Immigration and Border Protection (Border, 2016).
Since you have been nominated by an employer, you are eligible to apply for the visa within the next six months of the nominations letter. You also have a valid visa for your current residence in Australia as you may apply for this visa while staying in the country as well. Your passport hopefully is valid and if you are expecting a new passport ensure you report the same to the department.
You should be good at functional English as per the regulatory requirements of the country, else may be required to pay additional visa charges during the second instalment. Though you were a student here and your lectures were delivered in English, the duration of your masters degree course was much less than the stipulated period of 5 years and hence the requirement exists for you. You are under 50, so there is no problem in application. Do get a health check-up done and keep the reports to yourself proving yourself in sound state of health and mind. The results are valid for a period of 12 months. You are advised to get in touch with your local police station and get a police search record against your name. The search includes police records from both Australia and Nepal. You need to mention details of your family members in the application.
Do consult the document checklist for further clarifications and prepare the documentation. Then you need to apply online for the visa through the link on the website. All documents need to be uploaded in the soft form and the relevant visa charges paid through credit card. The upload needs to be done using your Immi Account that you need to open. You will receive an acknowledgement of receipt of the application by the department.
The visa processing takes between 5 to 8 months of time. Kindly ensure that your present visa is valid for the interim period. If not, you need to apply for a bridging visa (BVB) to legitimately live in Australia. Otherwise, you may be required to leave Australian soil and come back only after your visa is granted. Our advice is to also apply for the BVB if the present visa is valid for less than 5 months.
Hope these guidelines will help you process your visa application in a more efficient manner.
Yours sincerely,
Myself
(3) B – The Criteria for Lodging a Valid Application for a Class EN Subclass 186 Visa:
The Class EN Subclass 186 visa is a permanent residency visa for working professionals. Hence the requirements for this visa are stringent and needs to meet a lot of regulatory requirements.
Firstly, being a PR visa, it needs to ensure that the applicant has employment in the country to be able to sustain self (and partner – if applicable). Hence a letter from the employer guaranteeing sponsorship to the applicant is necessary[1].
The applicant needs to conduct in English; hence they need to qualify for a Basic English certification as per the requirements of the Australian government. However, for citizens of UK, Ireland, Canada, US, New Zealand this requirement is waived off.
[1] Myaccessaustralia, Permanent Visa
The applicant must be of sound health and hence needs to get a medical check-up done, the results of which are valid for 12 months.
The applicant needs to get a police record search done in all countries where the applicant has stayed in the immediate preceding 12 months. The record is to prove the cleanliness of character of the applicant.
The applicant needs to be below 50 years of age while applying. In case the person is above 50, the applicant needs to be a nominated professor or technical research scholar. During the pendency of the application process, the applicant needs to hold a valid visa for residing in Australia, if the application is being made while staying in Australia. If not a BVB Visa needs to be sought for the interim.
Bibliography:
Austlii, 1958. Migration Act 1958 – Sect 48. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s48.html [Accessed 09 October 2016].
australiaforum, 2013. What makes a lodged partner visa application valid? [Online] Available at: http://www.australiaforum.com/visas-immigration/18222-what-makes-lodged-partner-visa-application-valid.html [Accessed 09 October 2016].
Border, 2016. Employer Nomination Scheme (subclass 186). [Online] Available at: http://www.border.gov.au/Trav/Visa-1/186- [Accessed 09 October 2016].
Border, 2016. Independent review of the Office of the Migration Agents Registration Authority. [Online] Available at: https://www.border.gov.au/about/reports-publications/reviews-inquiries/office-of-the-migration-agents-registration-authority [Accessed 09 October 2016].
Border, 2016. Protection visa (subclass 866). [Online] Available at: https://www.border.gov.au/Trav/Visa-1/866- [Accessed 09 October 2016].
Border, 2016. Temporary Work (Skilled) visa (subclass 457). [Online] Available at: https://www.border.gov.au/Trav/Visa-1/457- [Accessed 09 October 2016].
Mara, 2016. Code of conduct & practice guides. [Online] Available at: https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/ [Accessed 09 October 2016].
Mara, 2016. Make a complaint about an agent. [Online] Available at: https://www.mara.gov.au/using-an-agent/resolving-disputes-with-your-agent/make-a-complaint-about-an-agent/ [Accessed 09 October 2016].
Myaccessaustralia, 2013. 10 Useful Things to Know About Your Australian 186 Visa. [Online] Available at: http://myaccessaustralia.com/10-useful-things-to-know-about-australia-186-visa/ [Accessed 09 October 2016].
