Migration and Refugee Law in Australia - Essay Example

Australian Migration Law QUESTION 1: There are several ways in which the details of Minister for Immigration and Border Protection v Kim [2014] 221 FCR 523 are relevant to the work that I have so far done in LAWS8167. First of all, the case helped me to gain a practical understanding of the basic details of Australian immigration law. Basically, immigration legislation in Australia, just as other types of legislation in the country, has been undergoing constant changes over the course of time (Pillai, 2014, p. 744). These changes are embodied in the Migration Reform Act 1992 and the Migrations Regulations Act 1994 which were subsequent pieces of legislation that were made to modify the original Migration Act 1958. In the case, the court heavily relied on the provisions of the original Migrations Act 1958, particularly section 48 and its provisions on the conditions that determine whether or not a subsequent application for a visa in Australia can be deemed valid. Studying this has helped me gain a practical understanding of the elements of migration legislation in the country. Second, I managed to gather from the case about the process of the decisions of the courts in Australia. In module 1 and 3 of the course work, I learnt about how the courts are organized, how case are heard and the final decisions made with regard to immigration issues (White, 2009, p. 151). There are several ways in which the details in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 provided relevant examples of the theoretical knowledge that I had gathered in the course of the study about the court process. For example, I learnt about how the different courts of law in Australia decide on the matters that are fundamental to the different cases that are set before them. In this particular case, the matter before the court was to determine whether the question of the validity of a visa application is an objective one that can be determined by the courts of law and whether the subsequent application by the respondent to the case for a temporary student visa in Australia could be deemed valid. It is upon this decisions that the orders that were issued by the court were based. Lastly, the case provided a practical example of how the courts arrive at decisions about matters set before them. In the course work, theoretical information about how courts arrive at decisions was provided. This included details about how the acts of law are usually interpreted, the use of precedent in making decisions about cases and reference to case laws in the process of arriving at decisions (Groves, 2014, p. 19). All these aspects of the court process are entailed in the case. For example, when arriving at its decision, the court heavily relied on an interpretation of different pieces of legislation that are relevant to migration issues in Australia and made references to decisions of the court about specific cases relevant to issues of migration. The cases referred to in the case were Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307 and Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324. The first piece of legislation used was the Migration Act 1958. Of particular importance was chapter 48 of the Act that has provisions on how a non-citizen who has been refused a visa can validly make a subsequent application for the same. It is based on these provisions of the act that the court arrived at the decision that the subsequent application for a visa by the respondent, after the first application had been denied, was not valid. The manner in which these provisions were interpreted in relation to the specific sections in the Migration Reform Act 1992 and the Migrations Regulations Act 1994 provided a practical understanding of how the courts interpret pieces of legislation when making decisions. QUESTION 2A: FILE NOTE There are specific conditions that an applicant has to meet for the application for the Onshore Temporary and Permanent partner visa (subclasses 820 and 801) to be considered valid (Vrachnas, Bagaric, Dimopoulos & Pathinayake, 2011, p. 63). First, a partner must not have had an application for a partner visa refused since the applicant last entered Australia. This criterion is meant to prevent unnecessary repeated applications for the visa by individuals after the first attempt has been denied. The second one is that the applicant should not have had an earlier visa in Australia refused or cancelled because of reasons related to the character of the individual in question. This criterion, which is anchored in section 501 of the Migration Act 1958, is meant to ensure that individuals whose visas have been rejected on character grounds are not allowed to apply for this type of visa in Australia. The third criterion that should be met for an individual to make a valid application for an onshore partner visa in Australia is that the individual must provide valid details of the sponsor. In practice, the person who is regarded as the sponsor of the applicant must be eligible, in accordance with the different rules and regulations that are used to determine the eligibility of a sponsor for an application for an onshore partner visa in Australia. Such a person must be an Australian citizen or a permanent resident in Australia or a New Zealand citizen who is eligible (Bagaric & Vrachnas, 2007, p. 58). On the other hand, the sponsor can be eligible if he or she is a spouse or the de facto partner of the applicant for the visa. Lastly, an application for the visa should be accompanied by two statutory declarations by individuals. The individuals making the statutory declarations can either be Australian citizens or permanent residents in the country or citizens of New Zealand who are eligible. It should be noted that the addition of the criteria discussed before was meant to make it possible for individuals who, having been affected by particular circumstances, had been deemed not legible to make an application for a partner visa in Australia. Initially, an individual who does not hold a substantive visa and has had a visa refused or cancelled since his or her last entry to Australia was subjected to the provisions of section 48 of the Migration Act 1958. The provisions of this section of the Act provide that an individual whose visa application has been refused or actual visa cancelled can only make a valid application for specific types of visas in Australia. Since the Onshore Temporary and Permanent partner visa in Australia is not a type of visa that an individual is allowed to apply for under the provisions, an individual in such circumstances was usually barred from making such an application. However, following the expansion of the criteria for application of partner visa, an individual can successfully make the application even if he or she does not meet the criteria stipulated in section 48 of the Migration Act 1958 (Department of Immigration and Border Protection of Australia, 2015). The visa conditions of Sam and the refusal of her previous visa application do impact her ability to make a valid visa application. This is because of several reasons. First, she had earlier made an application for a visa in Australia which was rejected. Therefore, it will be important for the relevant authorities to determine whether the earlier rejection impacts her validity to make an application for a partner visa. This decision will involve determining whether the provisions of section 48 of the Migration Act 1958, which are used to determine when an individual whose initial visa has been cancelled or refused, can be allowed to make another application for a different type of visa, will be applicable. QUESTION 2B: SHORT ANSWER (200 WORDS) The visa condition on Sam’s current visa that is relevant to Adam’s question is 8115. Part b of the section states that a person having such a visa as what Sam has shall not undertake work or supply services for an organisation or a person based in Australia. This condition can be interpreted to mean that an individual on such a subclass of visitor visa shall not take any form of paid work for an organisation based in Australia. What is important though is that Sam intends to work for at the company for free. This can be regarded as a form of volunteering. In general, the immigration policy in Australia allows for visitors to the country under different types of visas to volunteer in one form or another (Volunteering Victoria, 2015). The application of the policy depends on different factors and varies with the different types of visas that are in use in the country. Therefore, it can be argued that Sam may not have contravened the specific condition in her visa by taking work at the firm without pay. The work, which is not paid for and is not defined in terms of the requirements of time, may be deemed as a form of volunteering. References Bagaric, M. & Vrachnas, J. (2007). Migration and refugee law in Australia. New York: Cambridge University Press. Department of Immigration and Border Protection of Australia. (2015). Expansion of partner visa eligibility in Australia. Retrieved from https://www.immi.gov.au/migrants/partners/partner/partner-visa-expansion.htm Groves, M. (2014). Modern administrative law in Australia: Concepts and context. London: Cambridge University Press. Pillai, S. (2014). The rights and responsibilities of Australian citizenship: A legislative analysis. Retrieved from https://www.law.unimelb.edu.au/files/dmfile/37_3_6.pdf Volunteering Victoria. (2015). Volunteering on a visa. Retrieved from http://volunteeringvictoria.org.au/volunteer/volunteering-on-a-visa/ Vrachnas, J., Bagaric, M., Pathinayake, A., & Dimopoulos, A. (2011). Migration and refugee law: Principles and practice in Australia. New York: Cambridge University Press. White, M. W. D. (2009). Australian offshore laws. Sydney: The Federation Press. Cases Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307. Minister for Immigration and Border Protection v Kim [2014] 221 FCR 523. Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324. Read More