Discuss about the Australian Immigration Laws.
I am a registered migration agent in Australia who is writing you this application to waiver the condition 8503 attached on my client’s visitor’s visa. The name of the client is Sukhon Chaiprasit who is a 25 years old female Thailand citizen and holds a visitor visa Class FA, subclass 600 (tourist stream) with condition 8503 attached to it. Her visitor visa is about to expire in a couple of days, thus, my client Sukhon Chaiprasit wishes to get the condition 8503 waived on her visitor’s visa for applying for a fresh substantive visa in Australia.
Condition 8503 is imposed on various temporary Australia visa and is referred as a “No further stay” condition. If condition 8503 is attached to an one’s visa, it will means that the said visa holder except for a few exceptions, is not allowed to apply for any other visa in order to extend his stay in any manner till he is present in Australia. The only visa in such cases which is legally permitted to be applied for is the protection visa. Any visa holder with condition 8503 is allowed to apply for a protection visa. The primary reason for introducing the said condition was to ensure the Department of Immigration and Citizenship (DIAC) that visa holders with the said condition will leave the Australian territory before the expiry of their visa. The said assurance also allowed the Department of Immigration and Citizenship (DIAC) to sanction more visas as the fear of individuals present in Australia without visa permit was minimized. Thus, condition 8503 on any visa restricts the visa holding on whose visa the condition is applies to apply for any other substantive visa except protection visa while his stay in Australia. The visa holder whose visa has the said condition attached has to leave the Australian land before the expiry of his visa and staying for even a single day extra after expiry of the visa date is illegal and can cause detention of the visa holder to depart him from Australia. In case, the visa holder whose visa has condition 8503 attached to it has to leave the Australian land and go back to his country to apply for a fresh temporary or permanent visa to return to Australia again for a longer period. Thus, condition 8503 restricts a visa holder from applying for any substantive visa while his stay in Australia, however under subsection 41 (2) (a) of the Migration Act 1958 and Regulation 2.05 (4) of the Migration Regulation 1994 he said condition can be waived by the Ministry of Immigration in Australia. To be eligible for the said waiver, the visa holder has to comply with certain requirements mentioned under the above mentioned legislations.
The Regulation 2.05 (4) of the Migration Regulation 1994 states the first requirement for waiver of condition 8503 attached to Australian visa. It states that for waiving condition 8503, the visa holder is required to satisfy the Ministry of Immigration in Australia that some circumstances has changed since the visa was applied for and granted which are beyond the control of the visa holder. Moreover, the visa holder having condition 8503 attached to his visa also has to show that the Ministry has not denied any prior application of waiver. The sub section 41 (2) (a) of the Migration Act 1958 gives the circumstances in which Ministry will accept the waiver application and grant the waiver. Thus, the said section states that the visa holder in order to waiver condition 8503 attached to his visa has to prove that from the time the visa was granted to him, circumstances have drastically changed with compelling reasons which are beyond the control of the visa holder which have resulted in changed present situation of the visa holder.
My client Sukhon Chaiprasit has eligibly complied with subsection 41 (2) (a) of the Migration Act 1958 and Regulation 2.05 (4) of the Migration Regulation 1994 and meets the conditions which are required to grant her waiver of condition 8503 attached to her visitor’s visa. The lists of compelling reasons in the said case are as follows:-
The above reasons are beyond the control and were not anticipated by my client while applying for the visitor’s visa. My client was totally unaware that such mishap would occur while her stay in Melbourne which will prevent her from travelling back to Thailand. Therefore, as a migration agent, I believe my client has met all the requirements necessary to be granted a waiver of condition 8503 on her visitor’s visa which can make her apply for a fresh Class UB Medical Treatment visa under subclass 602 without leaving the Australian land.
I request you to consider the health of my client subsequent to the attack she faced in Melbourne and grant her waiver of condition 8503 as she has legally complied with ll the conditioned required by the statutory laws stated in 41 (2) (a) of the Migration Act 1958 and Regulation 2.05 (4) of the Migration Regulation 1994. The compelling reason in the said case being the attacked she faced which was totally unexpected which made it impossible for her to travel back, thus, the compelling reason also stands beyond the control of my client. Making my client travel back just to comply with condition 8503 and going against the doctor’s report which suggests her to avoid travelling for 6 months can be injurious to the physical and mental health of my client. Thus, in order to apply for the Class UB Medical Treatment visa under subclass 602 on grounds of her ill health which is backed by doctor’s report, it is important to waiver condition 8503 attached on his client’s visitor’s visa.
Therefore, I request the Ministry to use its discretion granted to it by the Statute under section 41 of the Migration Act 1958 to accept the said written application of waiver of condition 8503 on Sukhon Chaiprasit’s visitor’s visa and grant her the said waiver in order to make her apply for Class UB Medical Treatment visa under subclass 602. The said letter stated that all the requirements to qualify for a waiver of condition 8503 are met by my client. My client has not sent any other waiver application which was previously rejected. Thus, a grant of waiver of condition 8503 will be appreciated. The doctor’s report and recommendations are attached to the application letter.
Thank you
Yours Sincerely,
Registered Migration Officer in Australia
In the said case, Sukhon Chaiprasit visited another migration agent who applied for a fresh visitor’s visa, the said application was invalid. Sukhon’s visitor visa had condition 8503 attached to it. Therefore, according to Regulation 2.05 of the Migration Regulation 1994, the first step to apply for any fresh substantive visa would be to write an application to the Ministry request o waive condition 8503 attached to visitor’s visa. Section 46 of the Migration Act 1958 states that every visa application stands invalid if the same is made when the applicant is present in the migration zone and after he arrived in Australia; his visa has a condition attached to it which waiver is requested or refused by the Ministry after requesting or the same. Thus, the fresh visitor’s visa application of Sukhon Chaiprasit was invalid as she failed to get condition 8503 attached on her previous visitor’s visa waived.
When a visa holder in Australia holds bridging visa, enforcement visa or criminal justice visa, section 48 of the Migration Act 1958 prohibits the said visa holders to apply for any other visa. Thus, Sukhon Chaiprasit as a migrant in Australia was subject to 48 of the Migration Act 1958 because she was capable of presenting in front of the Immigration Ministry a valid case which shows compelling and compassionate reasons which make her eligible for grant of waiver on the condition 8503 attached on her visitor’s visa in order to make her apply for another fresh substantive visa base on the changed circumstances which are beyond her control[9].
Every professional service providers have a Code of Conduct which is to be followed by every individual in the said profession. Thus, the registered migration agents in Australia also have a Code of Conduct which is present in Schedule 2 of the Migration Act 1958. The major breach of code of conduct committed by the former migration officer of Sukhon Chaiprasit was his failure to apply in writing for a waiver of condition 8503 attached on her visitor’s visa before making a fresh application of any substantive visa[10]. This action shows that the former migration agent of Sukhon Chaiprasit had poor knowledge of immigrations laws in Australia and violated section 2.1 of the Code of Conduct for registered migration agent which states that every migration agent should act following the immigration law and with diligence to serve the best interest of his clients.
The migration agent also breached section 2.5 of the Code of Conduct which stated that a migration agent in Australia is required to be updated and keep his knowledge clear about the various migration laws in Australia including its amendments. Thus, the former migration officer of Sukhon breached the said section by apply for visitor’s visa where Medical Treatment visa under subclass 602 would be more appropriate after grant of waiver of condition 8503.
Moreover, a migration officer is always required to be honest with his client about the possibility of success of their application according to section 2.6 of the Code of Conduct, thus, the former migration agent failed to state Sukhon that her fresh visitor’s visa could be rejected or stands invalid.
Thus, failure of the former migration agent of Sukhon Chaiprasit to advice her clearly on the options she has for extending her stay in Australia prior to her attack and injuries, makes the agent violated the said sections of Code of Conduct for migration agents in Australia.
Reference List
Aas, Katja Franko. The borders of punishment: migration, citizenship, and social exclusion. Oxford University Press, 2013.
Code Of Conduct (Regulation 8) Second Schedule Of The Migration Act (at 1) https://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html
Code Of Conduct For Migration Agent In Australia (at 1) https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/
Devetak, Richard. “In fear of refugees: The politics of border protection in Australia.” The International Journal of Human Rights 8.1 (2014): 101-109.
Goot, Murray, and Ian Watson. “Population, immigration and asylum seekers: patterns in Australian public opinion.” Population 2010 (2011): 11.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.
Joppke, Christian. Citizenship and immigration. Vol. 2. Polity, 2010.
Migration Act 1958 In Australia (at 1) https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/
Migration Regulations 1994 In Australia (at 1) <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/>
Phillips, Janet, and Harriet Spinks. “Immigration detention in Australia.”Parliamentary Library 20 (2013).
Waiver Of Condition 8503 (at 1) https://www.border.gov.au/about/corporate/information/fact-sheets/52b-nfc
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