The present application has been made on the basis of the instructions that have been given by Sukhon Chaiprasit who is a client of mine and a citizen of Vietnam. In the present application, the waiver of condition 8503 has been requested as this condition has been imposed on the visa of Sukhon and the visa is going to expire within a month so that applicant may apply for subclass 602 Class UB Medical Treatment visa.
In this context, the 8503 conditioning goes on the visa of Sukhon provides that the holder of the visa will not be permitted to make an application for any other substantive visa, apart from a protection visa for the time, the visa holder remains in Australia. At the same time, as a result of the imposition of this condition, it is also required that the visa holder should leave Australia in case he or she wants to make application for another substantial visa. The result is that after the expiry of the current visa, the visa holder will no longer be allowed to stay in Australia. However, the condition 8503 imposed on the visa of Sukhon can be waived if she fulfills the criteria prescribed by Regulations 2.05(4) and also in accordance with subsection 41(2)(a), Migration Act.
According to the provisions of regulation 2.05(4), it has been provided that condition 8503 imposed on the visa of a person can be waived if it can be established before the Minister that there has been a significant change of circumstances, after the visa was granted to such a person. At the same time, it also needs to be established that the change in the circumstances of the person was beyond the control of the person who is looking for the waiver of condition 8503 and at the same time, the change has resulted in a noteworthy alteration in the situation of such a person. Another requirement in this case is that the person should not have made any other application and similarly no application for the waiver of the condition 8503 should have been denied.
My client, Sukhon fulfills all the qualifications that have been mentioned by section 41(2)(a), Migration Act and also the requirements of regulation 2.05(4) and in this way, it can be said that she qualifies for the waiver of condition 8503 that has been imposed on her visa in view of the below mentioned reasons.
When Sukhon was returning after dinner, she was attacked by some persons in Melbourne's CBD. This attack took place a week ago. The doctors from the hospital where she received the treatment strongly recommended that Sukhon should not travel at least for six months due to the fact that she had received the confessions when she was attacked on that night. At the same time, Sukhon also has to visit the hospital after every two days for her checkup. The expenses of a treatment are being paid by the Crimes Compensation Tribunal. The prosecutors also want Sukhon to become a witness when the proceedings are initiated against the attackers.
It also needs to be mentioned that she had no control over this change in circumstances and moreover, Sukhon did not have any role in this incident. She had no role in the attack and had not contributed in any way in this violence as has been the case in Minister for Immigration and Multicultural affairs v Farahanipour where the court stated that the waiver of condition 8503 imposed on the visa applicants will not be available if the applicant also had a part in these circumstances. But in the present case, Sukhon did not have any role to play in this incident.
Another case that can be cited in support of the applicant is that of Nguyen v Minister. In this case, the applicant was from Vietnam and visited Australia by holding a business visa and condition 8503 was imposed on the visa of the applicant. However the applicant married an Australian citizen and within a week, applied for the spousal visa. In its support, the applicant argued that in view of the marriage of the applicant, condition 8503 imposed on the visa of the applicant should be waived. But in this case, the court was of the view that the circumstance of being married to an Australian citizen cannot be treated as compelling circumstances. But in the present case, compassionate and compelling circumstances are present in waive the condition 8503 imposed on the visa of Sukhon.
Therefore, Sukhon wants that the Minister should use his discretion by invoking section 41, Migration Act and waive the condition 8503 that has been imposed on her visa. In the present case, she fulfils the qualifications and the circumstances contemplated by Regulation 2.05. Hence, the waiver of condition 8503 imposed on her visa is sought in this applicant.
Attorney of Sukhon Chaiprasit
The relevant provision could deal with this issue has been mentioned in section 48, Migration Act, 1958. This section provides that the applicants cannot make any further application for visa in Australia, other than the circumstances where the applicant applies for a bridging visa, enforcement or a criminal Justice visa. Under these circumstances, the application for visa that has been made by the former agent of Sukhon can be said to be invalid. The reason behind this conclusion is that condition 8503 was present on the visa granted to her and the legislative requirements that have been mentioned in section 48, Migration Act. Under these circumstances, it is clear that a valid visa application could not be made by Sukhon as provided by section 46, Migration Act.
Another reason due to which the application that had been lodged by the former immigration agent of Sukhon is invalid is due to the reason that the former agent did not seek that condition 8503 imposed on her visa should be waived before the application for another substantial visa was made. According to Regulations 2.05, it has been described that the first requirement for the applicants is that they should apply to the Minister and see the better of condition 8503 before they can make an application for another visa. The laws of provides that when the application for the condition 8503 has been denied, the applicant can only make an application for a bridging visa for the purpose of making arrangements to depart from Australia.
It has been mentioned in section 46, Migration Act that the visa application can be treated as invalid in case the applicant is a migration zone and the visa granted to the applicant had a condition imposed, that has been mentioned in paragraph 41(2) and when the Minister has not waived this condition as provided in subsection 41(2)(a) and is of the opinion that according to the present circumstances, the application for visa is not entitled to be allowed. In this way, when condition 8503 has been attached on visa, the legal effect of this situation is that such a person can no longer make a valid application for any other substantive visa while such person is still in Australia.
Section 48, Migration Act as mentioned in this regard that a visa has been declined to a non-citizen or the visa of the non-citizen has been canceled, can only apply for a particular class of visa. The effect of this situation is that when a visa has been declined to the applicant, except a bridging visa, when it was applied for by non-citizen or when it was considered according to the provisions of section 109, the person is allowed to apply for the particular class of visa that is described in this regard and not for any other class. Therefore, in view of the situation, it has been provided by section 48 that a substantive visa is a bridging visa, criminal justice or an enforcement visa. In this context, section 48(3) of the Act provides that when a person is precluded from using a bridging visa in order to avoid the application under section 48 while traveling globally. The conditions need to be prescribed in accordance with regulations 2.05(1) and (2).
In view of the legal provisions mentioned above, it can be said that in this case Sukhon can make an application to the Minister by establishing that compelling/compassionate circumstances are present due to which it can be testified that she lodges an application while she is still in Australia.
3. In this question, it needs to be decided if there has been a breach of code of conduct by the former immigration agent appointed by Sukhon. Therefore in the answer, it can be said that indeed there has been a breach of the code of conduct on the part of the immigration agent that was earlier appointed by Sukhon. For example, it was a breach of the code of conduct as the former immigration agent was well aware of the fact that when condition 8503 is attached, there are very constricting chances of making a visa application and it should be used only in case of very rare circumstances. The law provides that it should not be used as an alternative to fulfilling the criteria for making an application for visa, for example having the intention of visiting someone. The relevant legal provisions that deals with such a situation is present in schedule 2, code of conduct according to which, it is required that the registered migration agents should act in accordance with law and try to protect the legitimate interests of their clients. It is also required by the code of conduct that the agents should deal competently, diligently and fairly with their clients. However, going against these requirements, the former agent of Sukhon did not according to the best interests of Sukhon, who was his client. The reason is that in this case, Sukhon should have applied for subclass 602 Class UB Medical Treatment visa but ignoring these requirements, an application was made by the former agent of Sukhon even when he knew very well that condition 8503 has been attached to her visa.
Similarly in this regard, it has been mentioned in Regulation 2.6 that the migration agents are under an obligation to consider the objective criteria of the case and they are going to apply for a visa under the Act and Regulations. After doing so, the agents should frankly tell their clients regarding the chances of success of the application. But contrary to these provisions, the agent previously hired by Sukhon did not disclose the chances of success of the application made on behalf of Sukhon.
In this case, it can also be said that another provision of the code of conduct that has been breached by this migration agent was Regulation 2.19 according to which, keeping in view the instructions of the client, it is the duty of the migration agent to disclose full assessment of the facts to the Department against the relevant criteria. But in this case, the former agent applied for a visitor visa in place of the medical treatment visa and did not reflect all the circumstances of the applicant. As a result it can be said that this migration agent has prejudiced the chances of approval of his client.
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Crock, Mary, and Kate Bones, "Australian exceptionalism: Temporary protection and the rights of refugees." Melb. J. Int'l L. 16 (2015): 522
Kritz, Mary M. International migration, John Wiley & Sons, Ltd, 2011
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Minister for Immigration & Multicultural Affairs v Farahanipour -  FCA 82
Nguyen v Minister for Immigration and Multicultural Affairs -  FCA 360
Migration regulations, 1994
Migration Act, 1958