Australia Immigration Law for Vietnamese Citizen

Question:

Answer:

On the basis of the instructions given by my client, Sukhon Chaiprasit (hereinafter called Sukhon) who is a Vietnamese citizen, I am applying for the waiving the condition 8503 that has been levied on her visa that is due to expire in a next month and thereafter, applied for a Class UB Medical Treatment visa, subclass 602.

The 8503 condition that has been imposed on the holder is that the visa holder will not be permitted to apply for a substantive visa, after entering Australia, other than a protection visa when the person is still in Australia. As a result of the 8503 condition, the visa holder is prohibited from applying for a substantive visa, apart from a protection visa and this condition also requires that the person should leave Australia for the purpose of making a valid visa application.[1] As a result of this condition, it can be said that after the expiry of the date permitted, the visa holder will not be permitted any more stay in Australia. On the other hand, for the purpose of waiving condition 8503, it is required that one should fulfill the criteria that has been prescribing regulations 2.05(4), Migration Regulation and according to subsection 41(2)(a) of the Migration Act.

In this context, Regulation 2.05(4) provides that for the purpose of waiving 8503 condition, the person is required to establish to the Minister that after the grant of visa, a change of circumstances has taken place. Moreover, it is also required that the change was beyond the control of the applicant who wants that the condition should be waived and this has caused a significant alteration in the situation of the applicant.[2] It is also required that no previous applications should have been made or denied for the purpose of waiving the 8503 condition imposed on the visa.

In the present case, Sukhon fulfills the qualifications that have been contemplative by section 41(2)(a) of the Migration Act, 1958 as well as the Regulation 2.05(4), Migration Regulations and as a result, she qualifies for waiving condition 8503 imposed on her visa due to the below mentioned main reasons.

First of all, Sukhon was attacked when she was returning from a dinner in Melbourne's CBD. This incident has taken place seven days ago. According to the doctors at the hospital where she was intended to, it has been strongly recommended that she should not travel for a period of six months in view of the concussion that was suffered by her due to the attack. Moreover, Sukhon is also required to visit the hospital for a checkup after every two days. The Crimes Compensation Tribunal is taking care of all her medical expenses. Similarly, Sukhon has also been asked to be a witness in the proceedings against the attackers.

Sukhon had no control over the incidents and she had no role to play in the incident in which she was attacked and has not contributed to the violence as was decided by the court in Minister for Immigration and Multicultural affairs v Farahanipour[3] where it was said that the waiver of condition 8503 can be denied if the applicant had contributed to the circumstances.

In Nguyen v Minister[4], the applicant came from Vietnam and had entered Australia on June 2000 on a business visa on which condition 8503 has been imposed. The applicant married a citizen of Australia and within six days, applied for a spousal visa. It was argued by the applicant that as a result of the marriage, he was entitled to the waiver of the condition. However the Court stated in this case that the fact of being married to a citizen of Australian can rarely be considered as a compassionate/compelling circumstances.[5] Under these circumstances, Sukhon seeks the indulgence and discretion of the Minister in invoking section 41 of the Migration Act, 1958 for the purpose of waiving condition 8503 due to reasons that Sukhon fulfills the qualifications and circumstances that have been contemplative by migration regulation 2.05. Under these circumstances, it will be prudent to waive the condition on Sukhon's visa.

Yours sincerely

Why was the further visitor visa application invalid and is Sukhon subject to s.48 of the Migration Act (1958)?

According to section 48, Migration Act[6], applicants have been barred from making any more application while staying in Australia, apart from the circumstances where the applicant has a bridging visa, a criminal justice visa or an enforcement visa. In the present case, the application made by Sukhon is invalid due to the reason that condition 8503 has been imposed on her visa and it does not fulfill the legislative requirements prescribed by section 48 of the Migration Act and as a result, she cannot make a valid visa application in accordance with section 46, Migration Act.

At the same time, the application that was lost on behalf of Sukhon by another agent is invalid as that agent had not sought the waiver of condition 8503 before applying for another visa. In this regard, Regulation 2.05[7] provides that first of all, the applicants should apply to the Minister for seeking the waiver of condition 8503 before such a person can apply for another visa.[8] In the same way, if the application for the waiver of the condition is denied, such an applicant can only make an application for a bridging visa in order to make arrangements for departing from Australia.[9] 

In this regard, section 46, Migration Act provides that a  visa application can be considered as invalid in case the applicant is in migration zone and after his last entry in Australia, the visa was conditional on a condition that has been mentioned in paragraph 41(2) and the Minister has not waived the condition \ in accordance with subsection 41(2)(A) and the application made by the person is for these of find, that under the condition, the visa aspirant is not eligible to be granted.[10] Once condition 8503 has been forced on a visa, the legal effect is that the ability of such a person to make a valid application for further substantive visa (temporary as well as substantive) is no longer available while such a person remains in Australia.

In this regard, section 48, Migration Act provides that a non-citizen, who has been declined a visa or whose visa has been canceled, mainly applied for a particular class of visa. Therefore when the applicant has been declined a visa except a bridging visa, applied by the non-citizen or when the visa has been considered in accordance with section 109,[11] in such a case, the person can apply for a class of visa that has been prescribed for this purpose and not for any other class of visa. The meaning of this situation is that section 48 of the Act provides that a substantive visa is a bridging visa, enforcement visa or a criminal Justice visa.[12] Therefore, according to section 48(3) of the Migration Act, a person who has been prohibited from using a bridging visa for the purpose of avoiding application according to section 48 when the person is traveling globally.[13] The conditions should be those prescribed under Regulation 2.05(1) and (2), Migration Regulations.

In the present case, Sukhon can apply to the Minister by showing that compelling and compassionate reasons are present that justify lodging an application while she remains in Australia.

2. It can be said in the present case that there has been certain breaches of code of conduct by the former immigration agent of Sukhon. The first breach of the Code of Conduct can be described that the former agent was aware that once condition 8503 has been imposed on a visa, the chances were making a visa application are very constricting and they should be used only in very extraordinary conditions.[14] It should not be used as a substitute to fulfilling the criteria for the application for visa like having the intent of visiting someone.

In this regard, schedule 2, Code of Conduct has provided that “a register migration agent is required to act according to the law” and to protect the legitimate interests of their clients and deal with the client fairly, diligently and competently.[15] But in the present case, the migration agent of Sukhon had breached the requirements prescribed by the Code of Conduct as the agent could not act consistent with the interests of his client, Sukhon as in this case, she was looking for Class UB Medical Treatment visa, subclass 602 but the agent made another application for a visitor visa although the agent was aware of the fact that condition 8503 has been imposed on her visa.

At the same time, it also needs to be noted that according to Regulation 2.6, Code of Conduct, an agent is required to consider the objective criteria of each case while applying under the Migration Act and the Migration Regulations and should frankly tell the chances of success to the applicant.[16] In this case, the former migration agent of Sukhon had breached this requirement prescribed by the code of conduct as he did not tell Sukhon regarding the chances of success of her application being accepted by the Minister.[17] In the same way, the former migration agent has also breached regulation 2.19, Code of Conduct as subject to the instructions given by the client, the migration agent has a duty to disclose a full assessment of all the facts against the relevant criteria to the Department of Immigration and Border Patrol. While applying for a visitor visa instead of the medical treatment visa, the former migration agent of Sukhon had failed to get there and reflect the circumstances of the applicant and in this way prejudice the chances of approval of Sukhon.

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