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Question:
Discuss about the Health Professionals and Immigration.
 
 
Answer:
Introduction:

The current application has been made on behalf of Sukhon Chaiprasit who wants the minister to exercise hie discretion for the waiver of condition of 8503 that has been attached to her visitor visa Class FA, subclass 600 (tourist stream). The visa of the applicant is going to expire in a month however, as she had to face an attack, the doctors had advised her against traveling for at least six months. Therefore, the applicant wants that condition 8503 imposed on her visa should be waived and she should be allowed to apply for subclass 602 Class UB Medical Treatment visa.

Background

The condition 8503 attached to the visitor visa granted to Sukhon provides that she cannot apply for any other substantive visa apart from a protection visa for the time being she remains in Australia. As a result of this condition, it is necessary that the visa holders should leave Australia in case such a person wants to apply for another visa. But according to Regulation 2.05, it has been provided that condition 8503 imposed on the visa of the applicant can be waived in case the criteria mentioned in this regulation is satisfied and also in accordance with the provisions of subsection 41(2)(a).

Application

The relevant provision is regulation 2.05(4) in which it has been mentioned that the Minister can use his discretion for the purpose of waiving the condition 8503 that has been imposed on the visa of the applicant if the applicant is in a position to establish before the Minister that there has been a significant change of circumstances after the grant a visa to the applicant. For this purpose of it is also required by these provisions that the person should be established before the Minister that such change in the circumstances of the person, was not within the control of such a person, who wants the waiver of condition 8503. It is also required in this context that due to the change in circumstances of the applicant, the situation of the applicant should have been significantly altered. The law requires that they should not be any other application made by the applicant and moreover, any such application should not be declined in which the waiver of the above-mentioned condition has been sought.

In this case, the applicant fulfills all the conditions mentioned above, that are necessary for the waiver of condition 8503 and prescribed by section 41(2)(a). The current applicant also fulfills the requirements that are present in regulation 2.05. Under these circumstances, it can be said that the present applicant fulfills all the conditions that are necessary for the waiver of condition 8503 that has been imposed on her visitor visa and allow her to apply for medical treatment visa. The change in circumstances due to which the applicant requires to apply for another substantial visa, has been mentioned below.

Unfitness to Travel

Nearly a week ago, the applicant was returning home after dinner when she was attacked by some persons. She suffered serious injuries and was taken to a hospital. After the treatment, the doctors strongly recommended that Sukhon should not travel for at least six months. In the same way, Sukhon was also required to visit the hospital after every two days for her checkup. The expenses of her medical treatment are being paid by the Crimes Compensation Tribunal.

Another change in the circumstances of Sukhon is the prosecutors want her to be a witness when proceedings are initiated against the attackers.

 

Keeping in view the qualifications that have been imposed by the above-mentioned laws, it needs to be noted that the present applicant did not have any control over the change of circumstances. Moreover, she also had no role to play in this incident. It is also worth mentioning that the applicant, Sukhon had not contributed in any way to this violence as was the issue in Minister for Immigration and Multicultural affairs v Farahanipour. In this case it has been stated by the court that the application for the waiver of condition 8503 cannot be allowed if it has been established that the applicant also had a role in these circumstances. However in the present case, Sukhon did not have any role to play in this incident. Another relevant case in this context is that of Nguyen v Minister. In this case, the applicant had come from Vietnam and was visiting Australia on a business visa. Condition 8503 was imposed on the visa granted to the applicant. However after coming to Australia, the applicant married an Australian citizen and applied for spousal visa. In this regard the applicant argued that due to the fact of the marriage of the applicant with an Australian citizen, condition 8503 needs to be waived so that the applicants may apply for a spousal visa. However the court stated that the circumstances of the marriage with an Australian citizen cannot be treated as compelling circumstances. But in the present case, as a result of the change of circumstances, the applicant cannot travel for at least six months. Therefore, compelling and compassionate circumstances are present due to which the Minister may exercise his discretion and waive the condition 8503 so that the applicant may apply for a medical treatment visa.

In view of the circumstances mentioned above, We seek the indulgence and the exercise of discretion by the Minister under section 41 and the waiver of condition 8503 that has been imposed on her visa. The relevant qualifications that have been mentioned in regulation 2.05 are fulfilled by the applicant therefore, the condition should be waived.

The issue in this case is why the further visitor visa application made by the former migration agent of Sukhon is invalid and is she subject to section 48 of the Act. It has been clearly mentioned in section 48 that a further application for visa cannot be made by the applicant, except a criminal justice, enforcement or bridging visa. As a result, the visitor visa application that was made by the former agent can be described as invalid. That application is invalid due to the reason that condition 8503 was attached on the visa granted to Sukhon and the legislative requirements provided by section 48.  As a result, Sukhon could not have validly made a further application for visa as mentioned in section 46 of the Act.

Before the application for the grant of visa was made by the former migration agent of Sukhon, the agent failed to see the waiver of condition 8503 that has been attached on the visa granted to Sukhon. According to regulation 2.05, the applicant is required to apply to the Minister for the waiver of this condition before they make any further application for the grant of visa. In this regard the law provides that when the application for the waiver of this condition has been declined, such applicant can only apply for a bridging visa in order to make arrangements for departing from Australia.

According to section 46, an application for visa needs to be considered as invalid if the applicant is in migration zone and the condition provided in paragraph 41(2) has been imposed on the visa granted to the applicant and where such condition has not been waived by the Minister in accordance with subsection 41(2)(a) and the Minister believes that under the circumstances, the application should not be allowed. Therefore when condition 8503 is present, the legal effect is that such person is not in a position to make a further application for any other substantive visa validly, while such person remains in Australia.

In this question, it needs to be considered if the former migration agent of Sukhon has committed any potential breach of the Code of Conduct. The former migration agent can be held liable for the breach of different requirements that have been prescribed by the code of conduct. Therefore it was a breach of the Code when the former agent, despite being aware that condition 8503 has been attached to Sukhon's Visa, and as a result there are very limited chances of making a valid visa application, still proceeded with making an application for a visitor visa. In this regard, it has been provided by Schedule 2, Code of Conduct that they register migration agents should act according to law and make efforts for protecting the legitimate interests of the clients. It is also the responsibility of the migration agents to deal competently, fairly and diligently. But in the present case, the former migration agent failed to act according to the best interests of his client, Sukhon. While under the circumstances, Sukhon needed a subclass 602 Class UB Medical Treatment visa, the agent made an application for another visitor visa.

The Code of Conduct has also imposed an obligation on registered migration agents by regulation 2.6 according to which the agents are required to consider the objective criteria of each case and to make sure that they apply for a visa for their clients in accordance with the Act and the Migration Regulations. After making such a consideration, the Code requires that the migration agent should frankly inform the client regarding the chances of success. However in the present case, against these requirements, the former migration agent of Sukhon failed to tell her that there was very little chances of success regarding the visa application.

It is also provided by Regulation 2.17 of the Code that when the application is grossly unfounded or vexatious, the registered migration agent should not encourage the applicant but in this case, the agent himself made such an application.

In this case, we have not encouraged Sukhon to take over work from the former agent therefore there is no breach on Regulation 4.4 when we took the case.

Another relevant provision in this context is the regulation 2.19 of the Code of Conduct. This regulation provides that considering the instructions given by the client, a responsibility has been imposed on the migration agents disclose to the department, full assessment of the facts against the relevant criteria. However in the present case, while applying for a further visitor visa on behalf of Sukhon, the former migration agent failed to reveal all the circumstances of the applicant. Under these circumstances, the former migration agent is liable for the above-mentioned breaches of the Code of Conduct.

 
Bibliography

Briskman, Linda, Deborah Zion, and Bebe Loff “Challenge and collusion: health professionals and immigration detention in Australia.” (The International Journal of Human Rights 14.7 2010)

Castles, Stephen. "Understanding global migration: A social transformation perspective" (Journal of ethnic and migration studies 36.10 2010)

Crock, Mary, and Kate Bones, "Australian exceptionalism: Temporary protection and the rights of refugees." (Melb. J. Int'l L. 16 2015)

Kritz, Mary M. International migration (John Wiley & Sons, Ltd, 2011)

Minister for Immigration & Multicultural Affairs v Farahanipour [2001] FCA 82

Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 360

Migration Act, 1958

Migration Regulations, 1994

Schedule 2: Code of Conduct, (regulation 8), Migration Act 1958
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