1. What breaches of the Migration Act and Migration Agents Code of Conduct would Ahmet Xerxes have committed in his handling of Raz’s case?
2. What does the 8503 visa condition mean?
3. Can Raz and Esther make another application for a visa in Australia?
4 Are they subject to section 48 of the Migration Act?
5. Prepare a submission to the Minister for Immigration and Border Protection seeking a waiver of the 8503 condition so that Raz and Esther can make a valid application for the Contributory Aged Parent visa without having to leave Australia?
1. The Migration Act[1] provides that the migration agents in Australia are required to be registered with the office of MARA for the purpose of providing migration assistance. Therefore the law provides that the migration agents should meet the competence standards and they should also follow the Code of Conduct and at the same time, they should keep their knowledge regarding the migration law and procedure up to date.[2] The Code of Conduct provides the professional and ethical standards that have to be followed by the migration agents in Australia. Legal force has been provided to the Code by Migration Agent Regulations[3].
In the present case, the migration agent of Raz and Esther, Ahmet Xerxes had made a promise that on the basis of the situation, they will certainly succeed in the application. Similarly the migration agent has charged a fee of $20,000. But after one month of making the application, they were informed by the Department of Immigration and Border Protection that their application was not valid because apart from other things, condition 8503 has been attached to their visas. When they asked Ahmet to refund their fee of $20,000, he refused to return the amount would and he also made a thread that he has some powerful friends who can create problems for their daughter Yasmin and her family. This amounts to a breach of the Code of Conduct by Ahmet. The reason is that the Code requires that under all circumstances, it is necessary that a registered migration agent should act according to the law and to protect the legitimate interests of the clients. It is also required that the agent should deal fairly, competently and diligently.[4] Therefore if a client has asked the registered migration agent regarding his or her opinion about the chances of having a successful outcome for the application made by the client, the agent should not mention unjustified or unsubstantiated prospects of success of the application when giving advice to the clients regarding the application made under the Migration Act.
The Code of Conduct also provides that the registered migration agency should not coerce or intimidate any person for their personal benefit. As a result, the Code provides that the registered migration agent should not be involved in an instance of physical threats, undue pressure, threats to the family members staying in Australia are overseas, untruthful claims regarding departmental sanctions or demand relation of ethnic or cultural anxieties.[5]
Regarding the fee that can be charged by the registered migration agents, no statutory scale has been provided by the law. But in this regard it needs to be noted that the fee charged by the registered migration agent should be reasonable under the circumstances of the case.[6]
On these grounds, it is clear that in the present case, there has been a breach of the above-mentioned provisions of the Migration Act as well as the Code of Conduct prescribed for the registered migration agents in Australia.
2. The meaning of condition 8503 can be explained by the effect of this provision on certain visas. Hence if the authorities have imposed condition 8503 on the visa granted to a person, it means that such person cannot apply for another visa (except the protection visa or for a temporary visa of a particular type) to extend the stay by such person is in Australia. When such person has departed from Australia, condition 8503 does not prevent such a person from making an application for other visas. Condition 8503 can be imposed on several visitors and temporary residence visas. But in case of the below mentioned visas, condition 8503 is a mandatory. These are (1) visitor visa (subclass 600) for these streams; sponsored family stream, tourist stream for the applicants who have sponsorship imposed and approved destination status scheme operating from China; (2) training and research visa (subclass 402) and (3) work and holiday visa (subclass 462).
3. In this regard, the law provides that if the last visa that was held by the person since coming to Australia has expired, such a person will not be able to apply for another visa in Australia (although there are certain exceptions) unless the person has requested and the authorities had granted a waiver of condition 8503 that has been imposed on the visa of such a person.
Hence in the present case, Raz and Esther cannot make another application for a visa in Australia unless condition 8.03 that has been imposed on the visa, has been waived by the authorities.
4. The bar imposed by section 48 is applicable only when the applicant has been refused or cancelled the visa since the last entry of the applicant to Australia and at present, the applicant does not have a substantial visa and the applicant is still in Australia. It needs to be mentioned that section for it is not applicable in case of the offshore applicants. However in the present case, as the above-mentioned requirements are satisfied, section 48 will be applicable to Raz and Esther.
5.
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Dear Sir/Madam, RE: VISA CONDITION 8503 – NO FURTHER STAY, WAIVER REQUEST APPLICANT: Raz El Ghoul and Esther DATE OF BIRTH: VISA DETAILS: PASSPORT DETAILS: DATE OF ARRIVAL: |
We advise that be acting on behalf of the applicants, Raz El Ghoul and Esther who want to make this application for the waiver of condition 8503 that has been imposed on them visitor subclass 600 visa.
Background: The applicant, Raz El Ghoul is a citizen of Iran and a 65 years of age. He, along with his wife Esther, aged 60 years had obtained a visitor visa (Class FA, subclass 600) in Tourist Stream for the purpose of visiting their daughter, YAsmil who lives in Australia and who had recently given birth to a baby. The visas of the applicants were valid for a stay of six months and conditions 8101, 8201 and 8503 has been imposed on them. During this time, Ali, the husband of Yasmin who had been working as a long-haul truck driver, met with an accident on the Hume Freeway. The semi-trailer of Ali was carrying high octane aviation fuel and after the accident, it is adapted into flames and Ali and his co-driver lost their lives in the accident. Yasmin was already struggling with her baby who was born with congenital heart defect and after the accident, she became more distraught and depends on her parents for continual support not only to cope with the tragic loss of her husband but also for managing the daily life which includes raising her baby in these adverse conditions.
Application: We submit that as per Regulation 2.05(4), in view of the reasons mentioned below, compelling and compassionate circumstances have developed after the grant of the visa to the applicants. Moreover the applicants have no control over the circumstances and it has caused a major change in the applicants’ circumstances. Subsection 41(2A) of the Migration Act provides that the circumstances under which the condition may be waived should be of the kind that have been mentioned in 41(2)(a). These require that (a) compelling and compassionate circumstances should have developed after the grant of visa with the condition (i) and the person had no control on the circumstances and (ii) it may have caused a major change in the circumstances of the applicant; (b) if the Minister had previously declined the waiver of the condition, the Minister should be satisfied that the circumstances are significantly different from the circumstances that were considered earlier; and (c) the request made to the Minister for the waiver of the condition should be in writing.
If condition 8503 has been imposed on a visa, the person to whom the visa was granted, is prohibited from applying for another visa, apart from a temporary visa or a protection visa, for extending the stay of the person while such person remains in Australia. On the other hand, after the person has left Australia, such a person is not prevented from making an application on another visa as a result of condition 8503. Hence, in view of condition 8503, the Department of immigration can grant more visas where additional security may be needed that the applicant for the visa will leave Australia after the expiry of the period of stay granted by the visa. In this regard, condition 8503 has mainly been successful in escalating the number of returns of these persons. In the same way, as a result of this condition, there has been a decline in the number of persons who may make efforts for remaining in Australia after the period of stay granted by the visa has expired.
In this case, Raz El Ghoul and Esther want to stay in Australia because their daughter, Yasmin had given birth to a child and soon she lost her husband in an accident. The child has a congenital heart defect. Under these circumstances, at present, Yasmin is not only emotionally dependent on her parents but she also relies on them for her daily routine and taking care of a child. The request for waving condition 8503 imposed on a visa cannot be decided by the authorities on the spot because it needs careful consideration. As required by the law, the application for the waiver of condition 8503 has been made in writing. Although, there is no official form that needs to be used for making an application for waving the condition 8503.
Request: As a result of the actual circumstances of the applicants, Raz El Ghoul and his wife Esther, the problems faced by their daughter Yasmin in raising her child, it is requested that condition 8503 that has been imposed on the visitor visa granted to the applicants should be waived so that the applicants may remain in Australia for the kind that is necessary to take care of their daughter and her child.
Briskman, Linda, Deborah Zion, and BebeLoff. “Challenge and collusion: health professionals and immigration detention in Australia.” The International Journal of Human Rights 14.7 (2010): 1092
Castles, Stephen. “Understanding global migration: A social transformation perspective” Journal of ethnic andmigration studies 36.10 (2010): 1565-1586
Crock, Mary, and Kate Bones, “Australian exceptionalism: Temporary protection and the rights of refugees.” Melb. J. Int’l L. 16 (2015): 522
Legislation
Migration Act, 1958
Migration Regulations, 1994
Migration Act, 1958
Briskman, Linda, Deborah Zion, and BebeLoff. “Challenge and collusion: health professionals and immigration detention in Australia.” The International Journal of Human Rights 14.7 (2010): 1092
Migration regulations, 1994
Crock, Mary, and Kate Bones, “Australian exceptionalism: Temporary protection and the rights of refugees.” Melb. J. Int’l L. 16 (2015): 522
Castles, Stephen. “Understanding global migration: A social transformation perspective” Journal of ethnic and migration studies 36.10 (2010): 1565-1586
Kritz, Mary M. International migration, John Wiley & Sons, Ltd, 2011
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