Background Information
To
The Minister
Department of Border and Security Protection
Australia
Sir,
My client, Mr. Abdul and Mrs. Yasmin have prayed for a parent visa and when the application has been gone before you, you have pleased to reject the application and cancel the prayer for visa under section 501 of Migration Act 1958. According to the provision of the said section, if the ministry does not satisfy that the character of a person is good or the person is capable enough to pass the character test, they may cancel the visa application on character ground. According to section 501(3) of the Act, if a person failed to comply with all the requirements necessary for the character test, the responsible minister either can refuse to grant the visa or cancel the visa application. The requirements of the character test have been defined under section 501(6), which are as follows:
- The person should not have a criminal record;
- The person should not have convicted during the period of immigration detention;
- No allegation should be made against the person under section 197A;
- The person should not involve with any criminal organisation;
- The person should not be charged with an offence.
Considering the past orders of Mr. Abdul, he has been convicted for an offence and was imprisoned for two year. Based on this record, the application of my client made under sub-class 143 i.e. Contributory Parent visa has been rejected.
From the notice of refusal, it is not clear that whether the decision for cancellation has been taken by the delegates or you; however, it is my earnest request to you to reconsider the decisions under section 501B on the following grounds:
According to the essence of the character test, the nature and character of the person should not be harmful for the national interest of Australia. It has been stated under fact sheet 79, the applicant’s substantial criminal record should be checked and analysed properly. However, according to fact sheet 65, the ministry has certain discretionary power over the issue. At the very instance, the conduct of the person should be harmful for the national interest and against the interest of the community. However, in this case, it has been observed that my client has been convicted for an offence; however, according to the past record, it has been clarified that the offence has been made thirty years ago and since then, no criminal record has been found. Further, my client is engaged with various charitable organisations, where he has donated a noteworthy proportion of his profit. Additionally, it has been observed that he is an active member of women’s refugee campaign. Therefore, it can be stated that my client is not harmful for the national as well as the community interest of Australia.
Reasons for Reconsideration
It has also been mentioned under fact sheet 65 that if the cancellation of visa of the applicant could affect the family of the applicant that resides in Australia, the visa cancellation process could be revised. In this case, it is to be notified you that the grandchild of my client has been suffering from severe Down syndrome and as my clients are close to their grandchildren; they are required to see her and take care of her. It is also noteworthy that my clients are eligible to obtain the visa and in case the visa is cancelled, they will suffer irreparable loss and their family will have to bear the loss too.
Therefore, it is my earnest request to you to consider the grounds mentioned above and kindly revises the decision made by your authority so that my clients get an opportunity to see their grandchild at this age. It is also required to maintain a balance in the family, which could be beneficial for my clients and the national interest of Australia will be intact.
Regards
Considering th facts of the case, it has been observed that you and your wife want to see your grandchild, who is suffering from a rare disease named severe Down syndrome. However, you have applied for a contributory parent visa under subclass 143. According to the eligibility criteria of the visa, you should have a son or a daughter, who is the permanent resident of Australia. From the facts of your statement, it has been observed that you have two children, who are residing at Australia permanently and you have seven grandchildren, who are all citizen of Australia. Therefore, it can be stated that you are eligible to make an application under that subclass. However, according to your past record, you were convicted for giving bribe to the government official and you were convicted for that. According to the law of Malaysia, taking or giving bribe is an offence. Based on the facts of the incident, the Australian Immigration Department has sent you a notice for the cancellation of your visa application.
However, the incident was took place thirty years ago and you may make an application to the Minister of Immigration and Border Protection Department. The nature of the subclass visa you have applied for is a permanent visa and if your application to revise the decision for changing the visa cancellation is not accepted, you have certain other options to pray for. According to the Migration Act 1958, you can apply for Contributory Parent (Temporary) visa under subclass 173. The eligibility criteria of the visa are similar to that of subclass visa 143; but the nature of the visa is temporary. Through this visa, you will be able to stay in Australia for two years. Your main intention is to look after your ailing grandchild and therefore, it is advised that this visa will be proved to be ideal to you.
Eligibility for Other Visa Subclasses
However, in this case also, you have to meet the character requirements and you have to arrange certain police certificate if required. Further, you have all power to apply before the minister of immigration department to revise the cancellation decision. Further, there is another option for you to apply. Considering your case, I must say that you can apply for a parent visa under subclass 103. According to the eligibility criteria of the visa, you have to qualify for the family test and according to the norms of the visa, you should have child who is/are the permanent resident of Australia. Under this visa, you will get a right to stay in Australia for permanently. Apart from this, you could get an option to apply for contributory aged parent (residence) visa under subclass 864 or Contributory Aged Parent (Temporary) visa under subclass 884 of the Migration Act 1958. Between the two visa options, the nature of the first one is permanent and the nature of the second is temporary.
It is therefore, advised to you that you have all these visa options mentioned above and you may apply for anyone of it. The eligibility criteria for those visas are quite similar and you will get similar benefits under those visa options. Therefore, if your application for visa under subclass 143 has been cancelled, you have the options to apply.
Regards,
According to the facts of the case, it has been observed that Abdul is a residence of Malaysia and his children are well settled in Australia and they are living in Australia permanently. He has seven grandchildren, among whom Heather is suffering from a severe syndrome. Being the grandparents, Abdul and his wife wants to see her at the crucial stage and applied for a contributory parent visa under subclass 143 of the Migration Act 1958. He is eligible for the visa, but he has failed to qualify the character test because of his past criminal record. However, an intimidation has been given to the Minister of Immigration and Border Protection department to revise his visa application and certain grounds have been mentioned there. I have been appointed as the registered migration agent on their behalf and I have made all the possible steps in this case.
However, Abdul and his wife Yasmin wants to know about the probability of success of the submission made before the Minister and they are very concerned about the same. According to the provision of the Migration Agent, it is my responsibility to guide them properly in this regard. However, under the Code of Conduct, there are certain duties mentioned for an agent that can be mentioned as under:
Various necessities have been recommended by the enactment like the Migration Act, which connected to the registered migration agents. The duties and liabilities of migration agent has been mentioned under section 314 of the Migration Act 1958. In the meantime, there are the Migration Regulations, 1998 and additionally the Code of Conduct for the movement operators which likewise give the principles to control the direct of relocation specialists. The law necessitates that the movement operators in Australia must be enlisted with Migration Agents Registration Authority which is additionally referred to in short as MARA. To be enrolled with MARA, it is vital that the relocation specialist has intensive information of movement arrangement and systems. Correspondingly, the law likewise necessitates that the activities of the movement operators are as per the Code of Conduct. In such manner it should be noticed that the administration of Australia has likewise supported this Code and accordingly, it is dealt with as a piece of Australia’s relocation enactment. As per the law, a man is thought to give movement help with case the individual uses involvement or information concerning the relocation methodology keeping in mind the end goal to help some other individual in regards to the issue is that can be said to fall inside the arrangements of Migration Act. It has been for the most part observed that help is given if there should arise an occurrence of the procedure related with documenting the visa application, sponsorship or visa crossing out. Anyway in such manner it is to be noticed that the issues like documenting the visa application shape or deciphering or translating or giving data related inside an issue with respect to the application however not giving any remark or clarification can’t be said to give such help. The law likewise gives that a man can profess to be enlisted relocation operator just if such individual is enrolled with MARA to give migration help. As specified above, it is fundamental for all the relocation operators were working in Australia that they ought to be enrolled with this organization. The movement operators ought to unmistakably tell their customers that for the most part the expense appraises that has been given to the customer by the relocation specialist does not cover the administration expense for whatever other charges that the customer may need to pay and in this way, such gauge just covers the expense that is being charged by the relocation specialist for the expert administrations that are given by such specialist. In such manner, a duty as a forced on the movement specialists to give an exact gauge of the customers with respect to every one of the expenses that are payable. For instance, the customer ought to be plainly educated that the duty regarding paying any extra charges like the expense for interpretation or elucidation benefits, any feed that might be payable to legitimate experts and bookkeepers, expense for medicinal reports, dispatch charges for the charge that might be charged for master counsel should be paid by the clients.
It is the discretionary power of the Minister whether to cancel the visa application or to revise the same. Being an agent, I must speak it to Abdul and guide them properly regarding the other visa options.
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Donnelly, Jason. “Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A Threat to Rule of Law Values.” Victoria UL & Just. J. 7 (2017): 94.
Migration Act 1958 (Cth)
Migration Agent Regulation Act
Moss, A. “Risk of Harm, Relevant Considerations and s 501: Wrangling the Minister’s Discretion.” Australian Law Journal91.4 (2017): 268-275.
Nicholson, Alastair. “Asylum seekers, children and The’Migration Act 1958′(Cth).” Legaldate 27.4 (2015): 2.
Ombudsman, Commonwealth. “The Department of Immigration and Border Protection: The administration of Section 501 of the Migration Act 1958.” Canberra, Australia: Commonwealth Ombudsman (2016).
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