You are a registered migration agent. Your first client, Jerry Chong, informs you that he is from China and arrived on a Class FA subclass 600 Visitor Visa with the following conditions:
8101, 8201, 8501, 8503 and 8558
His subclass 600 Visitor Visa expired 2 years ago. He lodged an application for a Class XA subclass 866 Protection Visa prior to the expiry of his visitor visa. This application was lodged by another migration agent who advised Jerry that although he had no chance of success, making this application would at least buy him time. The application was refused three weeks after he lodged the application. He did not have the application reviewed at the Administrative Appeals Tribunal (AAT).
Jerry informs you that he was a renowned chef in China specialising in Shanghai Chinese cuisine and the Hyatt Hotel in Sydney is willing to sponsor him under Class GK subclass 482 Temporary Skilled Shortage Visa. He is willing to accept the sponsorship provided he does not have to return to China as the real reason he does not want to return to China is that his parents want him to get married to a local Chinese girl who he is not in love with. However, if he cannot stay in Australia and has to return to China, he does not wish to proceed with the application as he has been offered another job with another 5 star hotel in China. Jerry would like everything to be in writing as his previous migration agent was reluctant to put anything in writing.
You inform Jerry that the cost for the provision of written advice is $200 as it will take you 2 hours to complete the letter.
1. Prepare a concise letter of advice to Jerry as to whether he can make a valid application in Australia for a Class GK subclass 482 Temporary Skilled Shortage Visa in light of his circumstances? As part of the letter of advice, you are required to explain in plain English his visa conditions.
2. As a registered migration agent:
(a) Advise Jerry as to what breaches, if any, would his former migration agent have committed under the Migration Agents Regulations 1994, based on the above scenario? What should the former agent have done in those circumstances?
(b) What are your obligations under the Migration Agents Regulations 1994 in relation to the agreement to charge the client $200 for the provision of a letter of advice?
To start with, a Class FA subclass 600 Visitor Visa used during the visit to Australia has conditions such as 8101, 8201, 8501, 8503 and 8558. It is essential to first understand what a Class 600 Visitor Visa means. This is also called a ‘Frequent Traveller Stream’ and it is used by individuals who regularly travel to Australia for short visits, friend or family visits, and business visits. In most cases, one is granted a 10-year stay. Also, this Visa has a high charge, (Birell 2017). In this scenario, the Visa has conditions set to it. Visa condition 8101 means that the holder of the Visa must not engage in any form of work of employment while in Australia, (Hugo 2017). The other Visa condition is 8201 which states that the Visa holder must not exceed 3 months of study while in Australia, (Kochenov 2017). Visa condition 8501 means that the holder of this visa must ensure that he has enough health insurance requirements during his visit. He or she must provide for all medical insurance and payments, (Stanley 2017). Condition 8583 provides for no further stay and as such, the visa holder will not be given any other visa while in Australia and as such, there will be no opportunity for one to stay further in Australia by applying for a different visa, (Kaur 2018). For condition 8558, one is not allowed to stay for over 12 months in Australia after being awarded a stay of 18 months, (Ananta 2017).
From the details provided above, it is clear that he cannot apply for a Class GK subclass 482 Temporary Skilled Shortage Visa, (Ding 2018). This is mainly because the visa has condition 8583 that does not allow further stay. According to the Australian Government Department of Home Affairs, the no- further stay condition can, however, be waived if the Visa holder applies for a temporary visa or a protection Visa, (Babones 2018). Before the expiration of the Visa, Jerry had applied for a Class XA subclass 866 protection visa, (Marvasty, F.T., Jamali, and Arashpour 2017). Because the application did not a success, Jerry could not be eligible to stay longer in Australia and as such, he is illegally in the country, (D’Costa 2018). It is upon him to depart the country.
An essential issue has to be clearly understood. It was the agent’s duty to inform Jerry about the need to apply for a Bridging Visa (BVE) with immediate effect. This could make Jerry stay in Australia lawfully as he made arrangements for his departure, (Nair 2017).
Implications of Visa Conditions
The first breach committed by the first agent entails his failure to put all details and agreements into writing. This is provided for under the 2017 Code of conduct for registered migration agents under section 2.8. Upon agreeing to represent Jerry, the agent was bound to put all information into writing so that it becomes official, (Leartbuasin, Potisarattana, 2017). Secondly, the agent should have followed the client’s instructions to the latter and advise him accordingly. Another element under this section entails informing the client about all steps and procedures being taken. This should have been done through writing. Lastly, the outcomes of the case should also have been through writing, (Section 2.8).
Under part 5 of the Migration Agents Regulations 1998, there is no limit set for the amount of fee to be charged by an agent as long as it is reasonable, (Section 5.1). As such, it is essential for an agent to give the client an estimated charge for the task at hand in hourly terms or as per the task, (Gomes, 2017). The time to perform the task is also stipulated and lastly, a written acceptance should be provided to the client by the agent. Under section 5.4, the agent should provide the necessary method of payments that the client is comfortable with, (Hoang and Reich, 2017).
Other issues raised in the Case Scenario
Apart from having an expired visitor Visa, Jerry’s Visa has the imposed conditions detailed above. Before the expiration for the Subclass 600 Visa, Jerry through his agent applied for Class XA subclass 866 Protection Visa. The Step to apply for a Class XA subclass 866 Protection Visa was a wise decision because the visitor visa was about to expire. Being a substantive Visa, a visitor’s visa subclass 600 qualifies one to apply for a Protection Visa. However, the application was not successful. The option to have his application at the Administrative Appeals Tribunal was however not pursued by the first agent.
Class XA subclass 866 Protection Visa
This visa can be applied by anyone who entered Australia using a valid Visa. As such, the applicant must have the intention of living and work in Australia permanently as a resident. Basing on these elements, Jerry qualifies because he has the necessary skills of working in Australia and also does not want to return to China because he will be forced to marry a lady he does not love. In addition, he has been given an opportunity to work as a chef by Hyatt Hotel in Sydney under a sponsorship. It is also worth noting that this Visa allows one to have permanent residency in the long run. The protection offered by this Visa is explained clearly to consist any form of persecution that the applicant may be facing. The premise of refusing to go back home due to the fear of being forcefully made to marry is a form of persecution which has to be deliberated on by the tribunal. This, however, may not be a reason to avoid going back to China or qualify one to get a Protection Visa. As such, this may have been the reason for the first application to fail.
Role of Immigration Agent in Migration Process
The Administrative Appeals Tribunal (AAT).
This is an important tribunal in Australia that undertakes reviews that are independent in nature on decisions made by administrative officers. These decisions are usually made by government ministers, agencies, departments, and state officials and by definition, this is not a Court or part of a Court Hierarchy in Australia. The decisions reviewed are mainly done under the guidance of the Norfolk Island laws. It is this tribunal that hears or determines whether decisions made by migration officers are legal or illegal. When an applicant is not satisfied by the decision made, he or she can appeal through the Administrative Appeals Tribunal (AAT).
It is essential to understand how the process of making an application before the Administrative Appeals Tribunal (AAT) happens, as well as the duration. After making an application to this body, the decision maker is notified about the application that has been lodged. Within a set period of 28 days after receiving the notice, there are some replies that the decision maker should provide to the applicant. This includes reasons for the decision made basing on the findings and facts as well as all forms of documents that the decision maker based his decision on. Provision of relevant documents is significant in this process because the members of the tribunal will review the documents, discuss issues surrounding the problem and make a decision of whether the decision maker’s decision was valid or not.
By understanding the procedures above, it is essential for an immigration agent to notify his or her client that the process is long. In Jerry’s case, for instance, the agent could have advanced him to apply for a Bridging Visa so that he could have the opportunity of staying in Australia legally until the day he decides to leave.
The issue of ‘Sponsorship’ and the Class GK subclass 482 Temporary Skilled Shortage Visa
Being a qualified and highly skilled chef, Jerry has the opportunity of getting a sponsorship under the Class GK subclass 482 Temporary Skilled Shortage Visa. In the first instance, this is not possible because of the Subclass 600 Visa which does not allow such a holder to work or stay longer after the expiry of the Visa. However, it is essential to have a better understanding of what a Class GK subclass 482 Temporary Skilled Shortage Visa is.
Approved sponsors are in the position of hiring a foreigner who is skilled, though on a temporary basis. This comes in handy for Jerry since he has a prospective employer (Sponsor) from the Hyatt Hotel in Sydney. This gives him a valid opportunity to apply for a Class GK subclass 482 Temporary Skilled Shortage Visa. Skilled labor is one area that is needed in certain countries hence the availability of this kind of visa that helps in filling the gap. However, not applications g through and this is subject to the different criteria set by migration authorities in the country. For one to get this Visa, he must have a nomination from an approved sponsor. Secondly, he must have the required qualifications and skills for the job being hired too. Also, he or she should have a good understanding and command of the English language. Health requirements, as well as character requirements, must be met. Lastly, the sponsor must lodge a nomination application for the applicant.
Administrative Appeals Tribunal
Conclusively, the issue of immigration and migration may seem simple and straightforward. This is not true because there are many challenges that are faced by Visa applicants, immigration officers, agents and members of Administrative Appeal Tribunals. The wide range of Visas, their requirements and restrictions confuse applicants hence the high rate of deportees and stranded individuals in overseas countries. In addition, Visa holders who understand the regulations well take advantage of Visitor Visas to look for ‘greener pastures’ as opposed to adhering to the restrictions given. Ignorance is not a defense and this notion may be used by individuals like Jerry in new countries especially when it comes to conditions set in Visa. It is imperative for agents and immigration officers to assist applicants by providing the necessary information in the different kinds of Visas. As such, individuals like Jerry will not have problems. Similarly, agents should strictly adhere to codes of conduct that have been set for them.
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