Australian Migration Law Issues - Assignment Example

Australian Immigration Law by Student’s Name Code+ course name Professor’s name University name City, State Date Question1 In the case, Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 is an appeal case in the courts of Australia. It is an appeal coming from the orders of federal circuit courts in Australia. The orders were made on the 3rd of October 2013 that quashed the decision that was made of a department of immigration and border protection officer, a department that was made on the 18th of January 2013. The orders that came from the courts directed the department of the appellant so as to re-determine the validity of the application of visa by the respondent according to the law (Crock & Berg 2011). The facts that gave rise to the proceedings are that the respondent applied for a visa on 17th of January 2013 under the category of a student temporary (class TU) in the subclass 573 higher education sector. The following day a letter was written to the respondent that his application for the visa was invalid with a reason that he did not meet the conditions set under section 48 of the migration Act of 1958. The provision in the law provides that a person is not permitted to make an application for a class TU (student visa) since the person does not hold a substantive visa. It also adds that this may be the reason because after entering the country one is denied a BU835 visa on the 31st May of 2010. It is good to note that the central legal issues are the application and meaning of section 48 of the Act in 1958 with relation to applying a visa of any type where a non-citizen is put in the migration zone. It also has the relation as to who after entering Australia is denied a visa for which they had applied. The provision is also related to section 46 which states that an application that is prevented by section 48 of the Act is not a valid application. However, the sections are very important as to answer the questions of the nature of prohibition to applying a visa by a non-citizen who is subjected to section 48 (Vrachnas 2000). The primary judgment of the case found that the visa application was what the respondent did not sign and that she was unaware of the application. The visa application process was undertaken by her father on her behalf. This meant that the father also signed on the behalf of the applicant. It was held that the relevant question that ought to be asked was whether the applicant was old enough to make an application on her own and make her own decisions. The judgment was that the officer was not in a position and hence failed to consider the authority of the father to make an application. It was then directed to the court of appeal. The issue at hand was whether the circumstances that led to the denial of the application for a class BU visa. The refusal to give the student a class BU visa was based on the conditions in section 48. At the time of visa, the respondent was 14 years and 4 months old. It is also good to realise that the respondent did not hold a substantive visa which is described to be the visa other than a criminal justice visa, bridging visa or even an enforcement visa. This is a very crucial case in this course as it gives a good understanding of different issues in the course of the types of visa, an explanation of immigration and the regulations in the system. The case law is also instrumental as it relates to several other case laws like in Ruddock v Vardalis (No 2) (2001) 115 FCR 229 where a commonwealth executive cannot refuse to permit to enter the migration zone. The case law also shows how important the courts are in the interpretation of the laws in Australia. The process of the primary judgment to the appellant courts is also clearly pointed out and explained an important case law hence in the course. The interpretation of laws is the most important factor in laws and especially in the migration laws and this case law gives a guideline to that. The case law also gives light on the issue of the conditions of the visa application. This means that the case law covers very many parts of the migration law and in an instrumental case law in this course. Question 2a To Adam, Subject: The conditions that Sam has to meet to make a valid application for a visa while in Australia. Thank you for your enquiry and the continued trust in our company to deliver the services that you require. From the enquiry that you made on the criteria that Sam has to meet before she makes a valid application for the partner’s visa, I need to clarify some issues. In Australia for a person to apply for a partner’s visa, they must either have planned to marry, be married or are in a very committed relationship with the sponsor who is an Australian citizen. This passport will enable you to immigrate to Australia. In this case, the Australian citizen (Adam) will then act as the sponsor of the visa application. This is very crucial as the sponsor will have to write to the immigration officers a statement indicating that he will give support for the immigrant (Sam) for a period of the first two years in Australia. The support that the sponsor must pledge will include food, financial assistance and accommodation so as to meet the standard and reasonable living conditions. In addition, it is also crucial to realize that the assessment must be done on an individual basis by the immigration officers against the applicant’s state of health and the character requirements. Another important condition that one must realise is the fact that for a person to obtain a permanent residence to Australia the applicant must undergo through a two stage process that the immigration department will oversee. The two stage process of verification is done no irrespective of whether the application is made onshore or offshore. In addition, a partner’s visa can be a permanent visa of a temporary one. In the first stage of the application, a temporary two year visa is granted but it is based on the officials assuming that the party is in a de facto relationship or is a genuine spouse. After the probation, the relationship between the two spouses is again reassessed and from this point a permanent visa is granted only if the relationship remain (Australia, & Australia 1985). Since you two are in a de facto relationship, it is necessary to understand the following conditions that must be met to be considered in a de facto relationship. The couple must first be in a relationship for at least 12 months which you satisfy as you have lived together for 13 months. However, these are the conditions to be considered. 1. The two are not married to each other 2. The two should have a mutual commitment to a shared life to the exclusion of all the other 3. They must be in a genuine and a continuing relationship 4. The two must live together or do not live apart permanently 5. They must not be related to the family. The other conditions required will be a signed statement on where, when and how the couple first met and how their relationship developed. The couple should also provide the domestic arrangement on how they support each other financially, emotionally and physically. When this level of commitment began is also necessary to indicate. Adam and Sam will also require indicating if there were any periods of separation, why and when they separated. Another very crucial aspect is how long they maintained their relationship during the separation period and the future plans. In this case, the Sam will not be refused visa due to the conditions that led to the refusal at first. This is because the application is based on two different conditions and the two types of visa that the applicant seeks are different. In this case, Sam is seeking a partnership visa which has different requirements to those of a student’s visa. In addition, the first time refusal was based on the suspension of the education provider and not necessarily on the faults of the applicant. All the conditions on Sam’s current visa seem not to affect the application of a new visa because the conditions of the visa she currently holds and the conditions of the visa she is applying for are different. An example is that condition 8115 that appears on her current visa allows only for business visitor activities like negotiations and other business enquiries, attending seminars and conferences but should not engage in work. This therefore means it does not interfere with the visa she is seeking to apply for. Question 2b The conditions that are present on the current visa that Sam holds are 8115, 8201, 8527 and 8528. The first condition 8115 is that a person must not work in Australia on his/her stay in Australia. In this case, Sam is allowed to engage in business activities that do not amount to work. Work is explained to be that a person cannot legally seek employment within Australia or within its territories and, therefore, cannot be employed by any entity that conducts business in Australia. This means that Sam cannot engage in work with an aim to receive income from it. This therefore is not a condition to affect Sam as if she is to engage in a voluntary job where she does not seek to get an income. Condition 8201 states that while in Australia the holder of the visa must not engage in any studies or any form of training for more than three months. This is a condition that cannot affect Sam in the stay in Australia as she does not have plans to engage in studies or even in training (Vrachnas 2005). Condition 8527 is a crucial condition in the laws of immigration and affects the health of the holder of the visa. It states that the holder of the visa must be free of tuberculosis at the time of entry into Australia. This is a condition that does not affect Sam as this means that she tested negative at the time of entry. Condition 8528 demands that the holder must not have any convictions for which the sentence is of or over a total of 12 months at the time of entry into (Australia & Australia 1996). This condition, therefore, does not affect Sam. From the conditions above, it is clear that the only condition that affects Sam is condition 8115, and hence Sam must do the work purely on a voluntary basis. It would be illegal for Adam to pay Sam for the services she provides. Therefore, Sam can only work with the condition that she is unpaid. Work cited Crock, M. E., & Berg, L. 2011. Immigration, refugees and forced migration: Law, policy and practice in Australia. Annandale, N.S.W: Federation Press. Vrachnas, J. 2000. Migration and refugee law in Australia: Cases and commentary. Cambridge: Cambridge University Press. Australia., & Australia. 1985. Human rights and the Migration Act 1958. Canberra: Australian Govt. Pub. Service. Vrachnas, J. 2005. Migration and refugee law: Principles and practice in Australia. Cambridge [UK: Cambridge University Press. Australia., & Australia. 1996. Migration Act 1958. Canberra: Australian Govt. Pub. Service. Read More