Australian Migration Law And Practice: Waiver Of Condition 8503 Essay.

Discuss about the Australian Migration Law and Practice.
 

Sukhon Chaiprasit is a legal immigrant to Australia. She holds a valid visa that is due to expire within a period of one month and twenty days. However, as a result of new unforeseen developments, it is likely that she shall be required to extend her stay in Australia for a further period of six (6) months for reasons to be disclosed herein below.

The submissions below are made to the Minister for Immigration and Border Protection on behalf of Sukhon Chaiprasit seeking a waiver of condition 8503 that was imposed on her Visitor Visa (Tourist Stream) Subclass 600 so as to allow her to apply for a Class UB Medical Treatment visa, subclass 602.

The relevant facts to the application for waiver are as articulated below:

The Applicant (Sukhon Chaiprasit) is a citizen of Thailand. She arrived in Australia two months ago on a visitor visa (tourist stream) Class FA, Subclass 600. This class of visa has conditions 8101, 8201, 8501 and 8503 imposed on it.

Seven days ago, Sukhon Chaiprasit was attacked by an assailant and suffered a concussion. Upon treatment, her doctors prepared a report strongly recommending that she should not travel for a further six (6) months period. Further, she is required to visit the hospital every two (2) days for check-up- the medical expenses in this respect are covered by the Crimes Compensation Tribunal. In addition, Sukhon’s assailant has been apprehended and consequently, she is required as a key witness in the case against the assailant.

However, her visa was issued two months and twenty days ago with a permitted stay period of three months from the date of Sukhon’s arrival. Therefore, having been in Australia for two months, the remaining stay period is one month. This period is clearly insufficient considering the fact that she will be required to stay for six months and it is untold what period the case against her assailant is likely to take.

In light of the above circumstances, these submissions are made on Sukhon’s behalf to have condition 8503 (which imposes a “No Further Stay” ultimatum) waived to allow her to apply for a Class UB Medical Treatment visa, subclass 602. 

Having briefly stated the facts above, the issue at hand is whether the circumstances arising above are sufficient to allow the waiver of the No Further Stay condition.

Brief Facts

The applicant acknowledges that she freely and knowingly[1] conceded to the imposition of condition 8503 whose effect is to bar her from applying for any other visa except under exceptional circumstances.

The law makes clear provision for the waiver of the no further stay conditions. The purpose of the submissions herein shall be to demonstrate that Sukhon’s circumstances indeed entitle her to the waiver within the parameters allowed by the law.

Reference is made to the Migration Regulations of 1994 which provide for the conditions to be fulfilled before condition 8503 is waived.[2] These conditions are:

That subsequently after grant of the visa, compelling and compassionate circumstances have arisen;

1. That the person had no control of the newly developed circumstances; and
2. That the circumstances have resulted in a major variation to the person’s conditions.

It must be demonstrated that the above circumstances are present before Sukhon can be granted the waiver sought for. At this point, it is necessary to appreciate the fact that though Sukhon has expressed  interest in the male nurse, any intentions to establish a relationship with him will not be of any equilibrium to the Minister’s decision making process because that factor will not be considered as a circumstance “beyond the applicant’s control.”

It is hereby submitted that there exists strong conviction that Sukhon’s circumstances have satisfied the prerequisite conditions for the grant of a waiver of condition 8503 as analyzed below:

1. Development of compelling and compassionate circumstances

As Sukhon narrated and as supported by the attached medical report, Sukhon was recently attacked by an assailant who left here with a concussion. Further, upon treatment, it has become apparent that Sukhon is not medically fit to travel for a further period of six (6) months.

In addition, Sukhon has been called as a witness in the case against her assailant. With her stay period expiring in a month’s time, Sukhon will inevitably be required to stay longer than initially contemplated.

Taking into account her medical condition, and the fact that she is undergoing treatment, it will not be in her best interest to leave the state merely because her visa validity period would have come to an end.

This is therefore a compelling and also a compassionate circumstance that will necessitate the waiver of the limiting condition and allow her to apply for the Class UB Medical Treatment visa, subclass 602.

1. Lack of control

The act of being attacked while returning from a dinner in Melbourne’s CBD was totally beyond Sukhon’s control, if at all. It would be a fallacy to even contemplate that she would have knowingly exposed herself to the attack which caused her a concussion.

Issue

Therefore, she was merely a victim of violence which any visitor to Australia should not be subjected to; and should not be made to suffer consequences thereof.

1. Major change of circumstances

It is submitted that as a result of the attack, there has arisen a major change in Sukhon circumstances that necessitate the intended further stay in Australia.

As the doctors’ report indicates, Sukhon is not medically fit to travel for at least a period of six months and she is required to visit the doctors every two days for medical check-up. Further, she is required to appear in court as a witness to the case against her assailant.

Therefore, it is argued that these are clear major changes in Sukhon’s circumstances which necessitate her further stay for the medically recommended period of six months. 

Conclusion

From the submissions herein above, it has been explained how Sukhon arrived in Australia under a visitor visa (tourist stream) with, inter alia, condition 8503. It is further illustrated how she was attacked by an assailant; an attack which, according to the doctors, has rendered her to be medically not fit to travel for at least the next six months. In addition, she has been required to be a witness in the case against her assailant, though it has not been stated when the case is likely to begin.

It has been argued in the preceding paragraphs that the circumstances Sukhon is in do satisfy the conditions for waiver of condition 8503 because they are compelling, compassionate, beyond the control of Sukhon and they have changed Sukhon’s circumstances substantially. 

It is humbly submitted that the Minister ought to take into consideration the best interest of the applicant whose medical condition may expose her health to further deterioration. Further, for the interest of justice, Sukhon deserves a chance to see to it that her assailant faces the law. Denying her this opportunity will be tantamount to an injustice on her.

In light of the above-stated circumstances, these submissions are made on behalf of Sukhon for the Minister to waive condition 8503 to allow her to apply for a Class UB Medical Treatment visa, subclass 602.

This question interrogates why the further visa application was invalid and whether Sukhon is subject to section 48 of the Migration Act, 1958.

Condition 8503 limits the circumstances under which one can extend his/her stay in Australia beyond the allowed period of time.[3] An applicant seeking to extend their stay must first make a formal application to the Department of Immigration and Border Protection vide Form 1447[4] or by writing seeking a waiver of the condition, provided that the conditions for waiver as per Regulation 2.05(4) of the Migration Regulations of 1994 are met.[5]

The Analysis

Therefore, by failing to make the application for the waiver and subject to the application being accepted, Sukhon’s application for another visa was invalid because condition 8503 was still operational in her visa. 

Summarily, section 48 applies to non-citizens in the migration zone who, inter alia, do not hold a substantive visa, their visa application has been refused (other than an application for a bridging visa) or cancelled and have been removed from Australia and subsequently returns under Section 42(2A)(d) or (e).[6]

A substantive visa as defined under the Act means a visa that is not a bridging visa, a criminal justice visa or an enforcement visa.[7] The current visitor visa held by Sukhon, which is still valid, is a substantive visa within the meaning of the Act. Without examining the other provisions of the Act, the fact that Sukhon’s visa is a substantive visa in itself means that section 48 is inapplicable to her because of the use of the conjunctive “and” in subsection 1 which makes it mandatory for all the conditions stated therein to be existent before the section can apply. Further, subsection 2 does not also apply Sukhon has not been removed from the migration zone. 

Migration agents are governed by a Code of Conduct as set out in the Migration Act 1958 under.[8] Further, Regulation 8 Schedule 2 of the Migration Agents Regulations (1998) provides substantively the provisions that agents are required to observe during the discharge of the matters for which they have been licensed.[9] For Sukhon’s case, the potential breaches the former agent would have committed, in the absence of actual facts, can only be speculated by taking into consideration the existing circumstances.

For instance, paragraph 2.3, as read with paragraph 2.5, requires an agent to act with professionalism and reflect sound knowledge of the provisions of the Act.[10] Therefore, the agent ought to have known that Sukhon’s visitor visa had condition 8503 imposed on it and should have advised her that her application for any other visa would not be acceptable unless she successfully applied for a waiver of the condition first.

Paragraph 2.6 of the regulations expects an agent to access the client’s request and to be candid/frank about the prospects of success of the client’s application for visa.[11] Again, the agent must have failed to observe this regulation and proceeded to lead Sukhon on to make the application that turned out to be unsuccessful.

Under paragraph 2.9, an agent is required to refrain from making statements in support of an application that are misleading.[12] Being a qualified agent, it can only be assumed that the agent was fully aware of condition 8503 on Sukhon’s visa. Therefore, by trying to make another application for a visitor’s visa, it can only be presumed that the agent knowingly made the application for the visa knowing the same to be inaccurate.

For these breaches, the client (Sukhon) has a right to make a complaint to the Migration Agents Registration Authority.

Therefore, the agent failed to have due regard to the fact that Sukhon depended on the agent’s knowledge and experience as provided under paragraph 2.4.[13] 

Anon, (2016). [Online] Available at: https://www.border.gov.au/Forms/Documents/1447.pdf [Accessed 18 Jul. 2016].

Australian Visa News. (2013). “No Further Stay” conditions on Australian visas: can they be removed (“waived”)? [Online] Available at: https://australianvisanews.com/2013/02/16/no-further-stay-conditions-on-australian-visas-can-they-be-removed-waived/ [Accessed 19 Jul. 2016].

Mara.gov.au. (2016). Code of conduct - Office of the Migration Agents Registration Authority. [Online] Available at: https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/ [Accessed 18 Jul. 2016].

Migration Act, 1958 (cth)

Migration Regulations 1994 (cth)

Migration Agents Regulations (1998) (cth)

Ogawa, M., 2009. Hypothetical: potential problems of a student visa. Bond L. Rev., 21, p.i.

Vrachnas, J., Bagaric, M., Dimopoulos, P. and Pathinayake, A., 2011. Migration and refugee law: Principles and practice in Australia. Cambridge University Press.

Zhao, L. and Kondoh, K., 2007. Temporary and permanent immigration under unionization. Review of Development Economics, 11(2), pp.346-358.