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Immigration Law: Migration Act 1958

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Immigration Law: Migration Act 1958

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Discuss about the Immigration Law for Migration Act 1958.

Section 46 of the Migration Act 1958 states that a visa application is only valid if it is in relation to a visa of a class provided in the application, all requirements and criteria provided by the section are satisfied, all charges which have to be paid in relation to that particular class of visa application have been paid, any fees which is prescribed by the regulations in relation to the visa have been paid, no provision of the act prevents the application of the visa along with any other Commonwealth law and a few provisions of this Act[1]. These section are namely Section 48 where the visa have been refused or cancelled earlier, Section 48A protection visa has been cancelled or refused earlier, Section 161 non-citizens holding criminal justice visa, Section 164D non-citizens holding enforcement visa, Section 195 application being made out of time, Section 501E where the visa had been refused or cancelled on the grounds of character. In addition section 46AA application of grant of visa in relation to act based visas, 46A application made by unauthorised Maritime arrivals[2], S 46B application made by transitory arrivals[3], Section 91E or 91G Safe Third countries and CPA[4], section 91k related to temporary safe haven visa and section 91P non-citizens having access to protection by third countries[5]. The visa application is further invalid with respect to subsection 2 if the person making the application is in the migration zone, the condition imposed on the person under section 41(2)A have not been waived by the Minister, the application is subjected to a condition which provides that the visa cannot be granted. In relation to sub section 2A application for visa can be said to be valid in case it is related to an application with respect to a prescribed class for the purpose of the subsection and with respect to the regulation the application has been taken to be made validly. Further criteria may be prescribed by the regulations in relation to a specific class of visa to be valid. This can be in relation to where the application is made, how it is made and at what time it has been made.  The Migration Regulations 1994 states through regulation 2.07 that all charges needs to be paid in relation to the visa application[6]. The application has to be made in the place prescribed by the regulations and in the mode which has been prescribed. The application also has to be made through the particular forms for the specific types of visa applications.
Applicants of a contributory parent visa either temporary or permanent are not allowed to make an application for such visa if they have been barred from doing so. An applicant might be barred from applying for such visa if they have been imposed with a “No further Stay” condition through condition 8503 on the visa presently held by them. In addition a person not holding a substantive visa and have been not granted a visa as their application has been refused since they last entered Australia are also not eligible of making a visa application for contributory parent visa. Therefore in the particular circumstances a person whose application for partner visa has been refused and are not holding any substantive visa are not eligible to apply for contributory parent visa[7].
Section 35A and 36 of the MA, sets out Provisions in relation to the grant of Protection Visa. As per section 36 of the MA a person for the purpose of being granted with a protection visa must be a risk to the country as per section 4 of the Australian Security Intelligence Organisation Act 1979 or has is danger to the security of the country or has been convicted of a serious offence. The legislation further provide that visa is provided to non-citizens in case if it is not provided then the applicant may suffer serious harm but the country has no obligation to provide such visa. The visa is also available when condition 8503 is imposed[8].  In this case thus an application for protection visa can be made even if the person is not a refugee and has not committed substantial crimes. However, providing such visa would be in the discretion of the minister.
Condition 8503 cannot be waived at the time the visa is applied for. The condition is related to no further stay which means as soon as the visa expires the holder has to leave Australia. However there are very limited circumstances in which visa condition can be waived by the minister. Firstly from the time the visa had been granted to the person compelling and compensate situation have arisen over which the person had no control and which have resulted in significant changes to the situation of the person. In case the minister had refused to waive the condition previously and the minister is content that the situation which have been discussed above are significantly different which had been considered in the previous assessment then also the condition can be waived by the minister. The request has to be made in writing to the minister for the waiver of such conditions. The department which considers the application to the wavier must be satisfied that the developed circumstances since the visa had been granted were not only compelling but also compassionate. The person did not have any control whatsoever in relation to such newly developed circumstances.   The circumstances have resulted in a major change in the personal situation of the visa holder. The visa condition cannot be waived automatically. Every request which is made for the waiver is assessed in relation to the particular circumstances in relation the legal requirements. However marriage or pregnancy or failure complete a course cannot be considered as circumstances which are beyond the control of the applicant and thus under such circumstances visa condition 8503 would not be waived by the minister. The decision of the minister to waive the condition or not cannot be reviewed under the administrative tribunals[9].
The code of conduct for registered migration agents in Australia is set out under scheduled 2, regulation 8 of the Migration Regulations 1998[10]. As provided by section 2.8 of the code the migration agent who has agreed to represent the client must provide such confirmation to the client with respect to his instructions in a written form[11]. According to Section 2.7 and 2.6 of the code the migration agent must provide a realistic advice relation to the success of the application in writing to the client within a reasonable time[12]. Section 2.10 of the code clearly states that an agent must not engage in any misleading or false advertisement including advertisement with guarantee success to the applicants[13]. According to court 2.11 a migration agent must always incorporate migration agent registration number while making an advertisement[14]. According to section 2.20 of the code it is the duty of migration agents to provide the client with written advice with respect to the cost of each charge and fee involved in the visa application[15]. According to Section 3.2A of the court it is the duty of migration agents to provide the clients upon agreement to work from them a copy of the consumer right and making a record that such copy has been provided[16]. It is also the duty of migration agents under section 5.2 of the code to provide the clients about all this vestments and charges to be charged by him along with the estimated time for such services to be performed[17]. According to Section 313 of the Migration Act and section 5.5 of the code it is the duty of every migration agent to provide the client with the statement of services. The statement of services has to contain particulars about the services to be performed and the charges which would be incurred in relation to the service[18]. When fees has been charged from the client a clients’ account has to be opened by the migration agent according to Section 7.1 of the code[19]. This account is different from the operating account of the agent the amount. The amount which is deposited into such account has to be held by the agent until it is required for the completion of the steps towards application or all the steps in relation to the application and the services to be provided to the client have been completed. In the provided circumstances Arthur has beached the code of conduct by stating in his advertisement that all applications would be successful. In addition no registration number was provided in his advertisement. Arthur did not provide Janice any statement of services other than a receipt after charging $5000. There was no clients account opened by Arthur for the purpose of depositing this money.
For the purpose of imposing this code the migration agent registration authority provide some sanctions but the sanctions or not criminal in nature. The sanctions can extend from here caution all suspension of the migration agent for a period or permanently. In the given circumstances Arthur can be imposed with a suspension by the migration agent registration authority.[20] 
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Migration Regulations 1998 (Cth)

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