LML6002 Australian Migration Law Assignment : Essay Fountain

Question:

1. Accurate answers to the questions demonstrating knowledge of statutory interpretation, legislative and regulatory provisions and applying problem solving skills.
2. Answers are justified by clear reference to the relevant facts, identify logical assumptions you have made about the facts in answering questions.
3. Arguments and information are clearly and logically presented.
4. Demonstrated understanding of principles and values of a registered migration agent.
 
 

Answer:

Question 1

The issue in this present situation is whether Anuman can make a valid application in Australia for a Student Visa Class TU subclass 500 in light of his circumstances. It also needs to be discussed that whether there will be any difference if his visa was cancelled under section 116 of the Migration Act 1958.

A person holding a Class FA subclass 600 Visitor Visa is eligible to visit Australia to indulge to activities in Australia reacting to business or tourism. Under this class of visa, tourism includes visiting relations and friends, holidays and recreation. The business visitors may attend negotiations, conferences or a business visit of exploratory nature.

The Migration Regulations 1994 provides for certain conditions under Schedule 2, which if attached to a visa becomes applicable to the holder of that visa and the holder of such a visa is required to abide by them. Condition 8101 contained in a visa requires the holder of that visa to refrain from engaging in work within Australia. Condition 8201 when attached to a visa prevents the holder of the visa to indulge into any course of study or training, which continues for a period exceeding 3 months. Condition 8501 when attached to a visa requires the holder of the visa to maintain sufficient arrangement for the health insurance while his stay in Australia. Condition 8503 when attached to a visa does not allows the holder to be granted a substantive visa except a protection visa after he enters Australia and till he remains in Australia. Condition 8558 when attached to a visa restricts the holder of that visa from staying in Australia for a period exceeding 12 months within an 18 month period.

Section 116 of the Migration Act 1958 contains provision regarding the power of the Minister may carry out the cancellation of a visa. This cancellation can be effected by a Minister, if he is satisfied regarding certain conditions. In case the circumstance or situation on the basis of which the visa has been granted to a person, ceases to exist, the Minister has the power to cancel such a visa. The Minister is also empowered to cancel a visa in case the fact on the basis of which the visa has been granted, never existed. In case the holder of a visa failed to abide by the condition attached to his visa, the minister has the power to cancel such a visa. The minister also has the power to cancel a visa in case another person is required to abide by a condition attached to the visa fails to do the same. The minister can also cancel a visa if the person after being granted the visa failed to enter Australia or has entered into Australia but has not cleared the immigration. The minister may also cancel the visa of a person if the presence of a person in Australia presents a risk to any individual or the community in Australia. The minister may also cancel a visa in case the application on which the visa has been granted was not in compliance with the laws prevailing in Australia.

Class TU subclass 500 is a visa that is granted to a person who desires to pursue education in Australia. This visa if granted allows a person to take admission to a full time course of study in Australia and the person holding the visa may stay in Australia for a period for which the course continues or for the period of 5 years. This visa also allows the person to take up employment for a maximum of 20 hours a week.

In case the visa of a person has been cancelled under section 116 of the Migration Act 1958, the holder of such a visa is not eligible to apply for a visa in Australia. However, the holder whose visa has been cancelled under section 116 of the Act may apply for a partner visa or a protection visa.

In the given situation, Anuman holds a Class FA subclass 600 Visitor Visa with conditions: 8101, 8201, 8501, 8503 and 8558. This means Anuman is eligible to visit Australia to indulge to activities in Australia reacting to business or tourism. Condition 8101 contained in his visa requires Anuman to refrain from engaging in work within Australia. Condition 8201 when attached to his visa prevents Anuman to indulge into any course of study or training, which continues for a period exceeding 3 months. Condition 8501 when attached to his visa requires Anuman to maintain sufficient arrangement for the health insurance while his stay in Australia. Condition 8503 when attached to his visa does not allows Anuman to be granted a substantive visa except a protection visa after he enters Australia and till he remains in Australia. Condition 8558 when attached to his visa restricts Anuman from staying in Australia for a period exceeding 12 months within an 18 month period.

 

However, Anuman is concerned that his visa may be cancelled under section 116 of the Migration Act 1958 as he has been working as a farmer at a fruit farm in Shepparton. But it has been found that the visa has one week remaining from being expired. This means that the visa of Anuman has not been cancelled under Section 116 of the Act. Moreover, Anuman wishes to study agriculture in Australia. For the purpose of the same, he wanted to apply for a student visa Class TU subclass 500. Class TU subclass 500 is a visa can be granted to Anuman as he desires to pursue education in Australia. This visa if granted will allow Anuman to take admission to a full time course of study in Australia and he may stay in Australia for a period for which the course continues or for the period of 5 years. This visa will also allow Anuman to take up employment for a maximum of 20 hours a week. As the Class FA subclass 600 Visitor Visa that was held by Anuman has not been cancelled under section 116 of the Act, he may apply for a Class TU subclass 500 as there is no restriction to be imposed on Anuman with respect to the making an application for such a visa. This is because his visa has not been cancelled under section 116 of the Act.

However, in case the visa of Anuman has been cancelled under any of the grounds, which has been mentioned under section 116 of the Act, he will not be eligible to apply for a visa in Australia. However, he may apply for a partner visa or a protection visa even if his visa has been cancelled under section 116 of the Act.

Question 2

The issue in this present situation is whether the migration agent has any ethical and legal obligations under the Migration Agents Regulations 1998 (Cth) in light of these circumstances.

The Migration Agents Regulations 1998 (Cth) regulates the conduct of the Migration agents and requires them to abide by the provisions of this code. This code provides for certain obligations that a migration agent is required to ensure. The Migration agent registered in Australia needs to maintain the confidentiality of the client he has been advising. The migration agent is restricted from allowing the confidential information about a client he has been serving from being disclosed or from being exposed to the chance of being disclosed without his written consent of such disclosure. However, such a disclosure is allowed in case the agent is required by law to make such disclosure. The code also requires the agent to keep all the documents entitled to a client in a secured manner. The documents must be kept by the agent in such a way, that the confidentiality of the same has been maintained. This duty of the agent exists till the elapsing of seven years of the agent’s last action in the matter of the client. This code also requires the agent to disclose in writing to the client any financial benefit that he is supposed to derive from the advice he has been providing to the client, which is not related to migration.

In the present situation, Anuman notices that one of the files is relating to his cousin who is studying in Melbourne. Anuman enquired to the migration agent regarding the matter and the migration agent informs him that he is assisting his cousin with a partner visa application. This is a contravention of the Code of conduct that regulates the migration agent under Migration Agents Regulations 1998. The migration agent had a duty to maintain the confidentiality of the client he has been advising, but he contravened the same by disclosing the details of Anuman’s cousins matter to Anuman. The migration agent is restricted from allowing the confidential information about a client he has been serving from being disclosed or from being exposed to the chance of being disclosed without his written consent of such disclosure but keeping the files of Anuman’s cousin in the desk to be seen by the visitors coming to his office was a contravention of that duty. Such a disclosure is allowed only in case the agent is required by law to make such disclosure but in this situation the agent was not required by law to do so. The code also requires the agent to keep all the documents entitled to a client in a secured manner, which the agent fails to comply with as Anuman have discovered the file lying on his desk. The documents must be kept by the agent in such a way, that the confidentiality of the same has been maintained, which the agent has failed to abide by.

The migration agent had ethical and legal obligations under the Migration Agents Regulations 1998 (Cth) in light of these circumstances but he has failed to ensure the same as he made disclosure of the confidential information of one of his client ton another. Moreover, he failed to keep the file of Anuman’s cousin securely and disclosed information about him on being enquired by Anuman.

 

Reference

The Migration Act 1958

The Migration Agents Regulations 1998 (Cth)

The Migration Regulations 1994

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