LML6006 Migration Review Mechanisms And Law : Essay Fountain

Question:

Question 1
 
Jaspal, a citizen of India, applied for a subclass 820/801 partner visa on 1 December 2013. He was sponsored by an Australian Citizen, Irene Morris. On 15 July 2017, he received an email from the Department advising him of its decision to refuse the visa application. He wants to know if it is possible to have the decision reviewed. Assume today is 17 July 2017 when Jaspal comes to see you for a consultation. He would appreciate a brief letter of advice addressing the following issues.
 
(a) Is Jaspal able to have the decision reviewed, and if so, by which body?
(b) What time limits does he need to be aware of in order to lodge a review application in time? What is the last date for the application to be reviewed by the relevant body? Does it include the date of notification?
(c) What is the cost to lodge a review application and what form should Jaspal use? Who will be the review applicant?
 
Question 2
 
Jaspal subsequently informs you that his relationship with Irene has ceased. He, however, wants you to lodge a review application and act on his behalf. You advise him that there are no chances that he would succeed if the relationship has ceased and not continuing.
 
If you decided to act as his migration agent, what are your obligations, if any, under the Code of Conduct?
 
 

Answer:

Question 1 

(a) There are certain issues under which the visa application of Jaspal may be refused. There are three types of criteria that have to be matched by a person to grant a visa under this category. This involves adequate documentations presented, verification of the character and the medical fitness of the applicant. It is important that the person who is applying for the temporary partner visa in subclass 820 is present in Australia while the decision regarding the acceptance of the visa application has been made. The subclass 801/820 partner visa denial letters is often issued with appeal rights. Thus it is a fact that not always the department is right in denying an application for partner visa that is why they provide the applicant with the right to have further appeal to be done against the decision of denial. However, the application has to be made on administrative appeal tribunal or AAT. The visa applications that are made on subclass 820/801 are liable to review in AAT hearing. There is a certain type of denial of partner visa that is not be appealed in the AAT. This involves the denial of the visa on the ground of Section 501 that is ‘character’. In such situation it is mentioned in the refusal letter that reapplication on this ground is not applicable.

(b) It is important to note the review appeal has been bounded by time limit by the AAT. In case of denial of a subclass 801/820 partner visa the time limit for a re-application is generally 21 days following the receiving of notification regarding the denial of the visa. The administrative appeal tribunal is not likely to entertain any application post the time allotted for the appeal application. The application is to be addressed by the Australian appeal tribunal and it takes almost 18 months or more for the AAT to address the appeal application. As mentioned before the appeal has to be made in 21 days post the notification of the denial of the visa appeal.

(c) The application fee in case of a denial of visa application is $ 1,731. In case the application in the tribunal is successful, then half of the fees of application that is $ 865.5 is returned to the applicant by the tribunal. In case the application fails there wil be no refund. In case of hardship cases a certain amount of refund that is a partial refund can be done depending on the merit of the case. Jaspal still has time to make the appeal as the decision has been noticed by him on 15th of July 2015 and the day he has approached for consultation is 17th of July 2017. There are different forms to appeal in different cases. Jaspal can re-appeal using ‘application for review of decision (individual)’ form. The application has to be made by Jaspal because his visa has been refused in this case.

 

Question 2 

The migration agent registration authority or MARA fixes a code of conduct that has to be followed by the registered migration agents that provides consultation to the applicants. The code of conduct that is set by the MARA provides guidelines to the migration agents regarding the obligations of the agent towards the clients. The Migration act 1958 section 314 provides with the regulation for the appointment of a migration agent. The migration agent regulation 1998 schedule 2 regulation 8 sets the code of conduct of the migration agents.

The ethical framework of the code of conduct suggests that a migration agent should always follow highest standard of ethics while dealing with the clients. Honest and fair dealing has to be executed in conducting business with the clients. The code suggests that an agent should respond only to the legitimate request that is made by a client, to behave with the client with competence and fairness, ensure that the client information are protected, have a clear idea in dealing with interest conflict, regard the dependence of the client, ensure that there is no misleading or deceptive suggestions made during the course of communication and lastly to ensure that the client is not being intimidated or coerced for any purpose.

Section 234 and 234A makes it a criminal offense to provide false or misleading information to the department on behalf of the client or vice versa. Thus Japsal should be made aware of his present status (ceased relationship with Irene) and his re-appeal should be turned down by the migration agent.

 

Bibliography:

Birrell, Bob. “The outlook for population growth in Australia.” Sustainable Futures: Linking Population, Resources and the Environment (2014): 25.

Cane, Peter. Administrative tribunals and adjudication. Bloomsbury Publishing, 2009.

Homeaffairs (2018). Businesses, Agents and Trade Professionals. [online] Homeaffairs.gov.au. Available at: https://www.homeaffairs.gov.au/busi [Accessed 5 Oct. 2018].

Mara (2018). Ethical framework – Office of the Migration Agents Registration Authority. [online] Mara.gov.au. Available at: https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/ethical-framework/ [Accessed 5 Oct. 2018].

McDonald, Peter, S. E. Khoo, and B. Edgar. “The role of family migration in Australia’s permanent migration program.” Policy discussion paper’, report to the Department of Immigration and Citizenship (2013).

Stevens, Catriona. “Temporary work, permanent visas and circular dreams: Temporal disjunctures and precarity among Chinese migrants to Australia.” Current Sociology (2018): 0011392118792926.

Vrachnas, John, et al. Migration and refugee law: Principles and practice in Australia. Cambridge University Press, 2011.

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