Lml6004 Australia Visa System Assignment Assessment Answers

1. A client approaches you and requests an explanation in the form of a letter of advice (in plain English) as to the reasons the Court arrived at the decision and the implications of this case in relation to applying for a Class VC Skilled Provisional (485 Skilled Graduate Temporary) subclass 485 visa. The client has a similar factual situation.

2. What breaches of the Code of Conduct would a migration agent commit if the agent lodged an application in this manner without warning the client about the implications?

Answer:

The case of Khan v Minster for Immigration & Anor is in relation to application of a subclass skilled visa 485. In this case the tribunal had not allowed the visa as it was of a view that the applicant had not given evidence in relation to skill assessment when the application was provided. The applicant did not get skills assessment as in relation to factors which were not within its control. According to the Migration Regulations the application for this visa has to be made along with a proper skill assessment. The court was of the view in the case that even if there was no fault of the applicant in the situation, the courts do not have any support from the regulations to make a decision in favour of the applicant as it does not have powers to go contrary to the regulations. The application had been dismissed on the ground. The main legislative provision in issue was the section 351 of the Migration Act 1985 (Cth). The regulations which are at issue in this case are that of reg.485.2 and 485.223 of the Migration Regulations 1994 (Cth).  

The applicant was a Pakistani national and an information technology student who had been studying in the University of Canberra. In this case the processing of the academic records had been subjected to problems at many stages of the application although there was no fault on the part of the applicant in any aspect. However, till rectification had been carried out in relation to the paper work and proper information was provided in compliance to the regulations, the applicant had already failed to comply with the regulations. This led to the visa application being unsuccessful in relation to the minister and the administrative tribunal. The applicant made appeal to the court after the previous attempt to get the visa had failed. The court came to the conclusion that even where there was no fault on the part of the applicant and the fault rests on the part of academic institution in Australia the court has no power to do anything in the situation with respect to the provisions of the migration regulations. The court however suggested that the minister who has been provided with wide discretionary powers under the provisions of s351 of the MA may use them to allow the visa application. In the present situation the client who has similar facts as compared to this case must know the reasons for which the court did not allow the application and implications of applying for Class VC Skilled Provisional (485 Skilled Graduate Temporary) subclass 485 visa. The main reason for which the court came to this decision is that according to the migration regulations clause 485.2 all requirements have to be meet at the moment when a decision in relation to grant of visa is made unless it is stated otherwise. Further under s. 485.223 at the time which the application is made it has to be have evidence that an application has been made by the applicant for assessment of skills in relation to nominated skulled occupation by a proper assessing authority. Further a relevant assessing authority means a body or person identified by reg 2.26B. As at the time the application for the grant of visa to Mr khan was being assessed all criteria required to make a successful application were not satisfied even if t was not the fault of the applicant, the minister had all rights to reject the application based in the rules of the MR 1994. Therefore it can be implied through the application of this case that while making an application for Class VC Skilled Provisional (485 Skilled Graduate Temporary) subclass 485 visa the applicant must be very sure about the fact that all requirements which have been provided for under the regulations for the successful grant of the visa have been satisfied. This is because the visa would not be granted even if it was not the fault of the applicant that the criteria have not been satisfied.

The Migration Agents who are registered with the MARA are subjected to the provisions of the code of conduct provided under schedule 2 to the Migration regulations 1998 (Cth) with respect to the way in which they should operate. It has been expressly provided by the court under the provisions of clause 2.1 that the Migration Agent has to function within the scope of legal provisions to the legitimate best interest of the client. It is required under the code that the agents have to be competent fair and diligent in relation to discharging their obligations in relation to the clients. Under clause 2.3 it has been stated that it is the duty of the agent to depict a sound knowledge about the provisions of the Migration Act 1958 and other legislation with respect to the procedure of migration. They must be able to provide accurate and timely advice to the client. Due regards must also be given by the agent to the dependence of the client on the knowledge and experience of the agent as mandated under the provisions of code 2.4. In the current situation the question is that what part of the code of conduct would be breached by an agent who files a visa application on behalf of the client in the same was as depicted in the above case. It can be evidently conferred from the above provisions that the agent would have not complied with part 2 of the code of conduct. This is because it is the duty of the agent to depict a sound knowledge about the provisions of the Migration Act 1958 and other legislation with respect to the procedure of migration which he would have not done in this case. He would have also not acted in the best interest of the client in an diligent fair and competent manner. He would have also not given due regards to the dependence of the client on the knowledge and experience of the agent.

Thanking You

Bibliography

Migration Act 1958 (Cth)

Migration regulation 1994 (Cth)

Migration regulation 1998 (Cth)