LAWS8650 Applied Australian Migration Law And Practice

Question:

Halim Sayed is a registered migration agent.

His first client, Mr NingXiao, was born in China. He is now a permanent resident Australia.

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Ning is a single woman.

Chan received assistance from Halim when he completed a Class EA Business Skills (Business Talent), subclass 132 visa.

Ning, Halim’s client, initially requested that he deposit $9,900 to cover professional fees and GST plus disbursements in order to obtain a Class EA Business Skills 132 visa.

Halim took approximately 70 hours to complete this application, as well as the trip to Hong Kong to interview.

Halim was responsible for completing the application following Ning’s instructions.

Halim also attended an interview at the Australian Embassy Hong Kong with the client.

Halim provided Ning an agreement for fees & services.

Prepare a statement for Halim.

Briefly explain what Halim’s ethical responsibilities as a migrator agent under the Code of Conduct, before receiving his professional fees/disburements.

You are registered as a migration agent.

Dimitri Alexis will visit your office.

He is an Australian permanent residence.

He informs you that Heleni his wife is in Greece and Celesta their daughter (DOB: 15/04/2013).

Heleni applied to a subclass 309 Partner (Provisional Visa) visa with Dimitri, her sponsor.

Dimitri informs you that their daughter was born to severe hearing loss in both of her ears.

Dimitri gives you Heleni’s DIBP letter.

You are shown the DIBP correspondence which contains the following information.

“The MOC opinion is that the second applicant for visa will not meet the PIC 4007(1)(c(iii(A) requirement, as she has permanent severe bilateral loss of hearing.

MOC considers her a candidate for cochlear implants.

MOC thinks that an hypothetical person with this condition would need community services in Australia during the applicant’s proposed stay.

MOC estimates that community services for the hypothetical person would result in significant financial burdens to the Australian community.

The MOC estimates that the cost will be between AUD 90,000.00 and AUD 100,000.

As a delegate to the Minister, I am authorized to ask you for further information regarding your daughter’s medical condition.

PIC 4007 allows you to obtain a health waiver.

You must send any information related to PIC 4007 to this office by the 4th of June 2017.

Dimitri explains that his daughter has regular hearing aids and is doing well.

His wife has been practicing daily speech therapy exercises together with their daughter. She is also attending a mainstream kindergarten without any special help.

Dimitri is a certified dentist, but has not been successful in finding work in this industry.

He continues to search for employment in this field, but for now he works long hours in a meat processing factory in Northam. This is approximately two hours drive from Perth.

Dimitri sends to his wife and child as much money as he can afford, approximately $8000 every four months.

His wife is an expert cook who specialises in Greek food.

She owned a small, but popular restaurant in Athens before she had her daughter. She also wrote a cookbook about Greek family cuisine.

Because her husband has not lived in the same house as her daughter and her since marriage, she is now being discriminated against in her own village.

Dimitri and Heleni got married in March 2012.

Dimitri, who had his visa granted prior to his marriage, migrated to Australia to live with his family in June 2012.

He arrived in Australia shortly after his daughter was born.

The plan was for Dimitri to precede his family and then, once he had settled down and found a job, act as the sponsor for Celesta and Heleni’s subclass 309 visa application.

The visa application was submitted in June 2014.

Dimitri wants his wife and child to be with him in Australia.

They can then buy a house in Australia and start contributing to Australia once he has stopped sending money abroad.

Dimitri tells us that he called and talked to the DIBP official about his daughter’s condition.

But the DIBP officer said that she would need the information in writing.

Dimitri is anxious about what to write so he came to you for help.

For Dimitri, prepare a formal written submission to the Department of Immigration and Border Protection requesting a waiver of health requirements for subclass 309.

Refer to relevant legislation in your submissions. Make references to all supporting documents in your submissions.

For the purposes of these submissions, you can assume that the marriage was genuine.

Answer:

Answer 1 (A).

Statement of Service: This document is provided by the service provider to its clients. It includes the details of each service provided and the amount charged.

This statement includes details about each service offered by service provider to clients. All amounts are in Australian dollars.

In this instance, Halim Syed has been registered as a Migration Agent.

Ning Xiao was his first client. He holds the citizenship from China. Now he is a permanent resident in Australia.

Ning is single. Halim assisted Chan in applying for Class EA Business Skills (Business Talent), subclass 130 visa.

Halim demanded that Ning deposit $9,900 for professional fees. This also includes GST.

To complete the trip to Hong Kong, Halim took nearly 70 hours.

Halim provided a range of services including visa application completion according to Nings instructions. He also prepared submissions to support the request, made research on policy, reviewed financial statements, and established connection with client and Australian Embassy Hong Kong.

Halim visited the Australian Embassy in Hong Kong to interview the client.

Later Halim provided Ning an agreement regarding fees and services.

Below is the Statement of Service provided by Halim for Ning

Services

The amount charged

EA132 Business Talent VAC1

$ 6990 (includes all amount)

All professional fees (all services offered by service provider) are included in this amount

Total

Part 2 (Migration Agents Regulations 1998) defines professional conduct standards. The following conducts are listed as per the code of conduct:

A registered agent for migration must comply with the law. He or she must protect the legitimate interests of the client. The agent also has the responsibility to treat the client professionally, diligently, and fairly.

Agents who work in Migration must adhere to the Code of Australia if they are operating in any other country.

If a client questions about the application success, the registered migration agent must provide his answer in writing. He can also give advice orally, but oral advice will not be considered the same as oral advice.

Agents are also required to ensure clients have a solid foundation and a justifiable chance of success when advising them.

It is the responsibility of the migration agent to act according to the instructions provided by the client.

Answer 2

To: Department of Immigration and Border Protection

Dimitri

Date: 12th of May 2017.

Re: Requesting a waiver for the health requirement to obtain a subclass 309 visa

DIAC administers visa applicants’ health requirements. According to the Migration Health Requirement, it mainly aims at the protection of public and health.

Section 65 of 1958’s Migration Act deals with the determination process for health requirements.

This section is responsible for deciding whether to issue a visa or not.

This section applies to valid visa applications. It states that the minister must be satisfied that the visa applicant has met all the health requirements.

You should note that this section does not prohibit visa grants in certain circumstances. Section 40 states visa conditions. Section 500A describes visa cancellations and refuses temporary safe haven visas. Section 501 outlines the special power to cancel or deny visas.

Visa application fees must be paid if visa is granted. If the minister is not satisfied, then visa application will be denied.

This letter is about the waiver of health requirements. It’s only available in certain visa classes. However, it allowed the department the flexibility to evaluate visa applications that were not directly related to health.

According to law, visa applicants and their children who apply for visa must comply with the Act’s requirements. Family members who are not applying for visa need to also meet these health requirements.

For the purpose of deciding, it is important that applicants undergo health checks.

For processing visa applications, it is mandatory that visa applicants go through health examinations. The health examinations were modified on the 20th of November 2015. Also, applicant must make certain additional provisions.

As mentioned above, health waiver is only available to certain types of visas. The department must be satisfied that the visa will not lead to undue cost or prejudice to accessibility.

These waivers are called PIC 4007 Health Waiver.

The Commonwealth can grant a health waiver if the medical officer determines that the applicant is not in good health.

This is known to be prejudice to accessibility.

As mentioned above, Australia’s health requirements are outlined under three key PICs. These are defined in Schedule 4 to the Migration Regulations 1994.

These PICs were clearly defined in Schedule 4 of the Migration Regulations 1994 and apply to all visa applications.

These three PICs can be found below.

PIC 4005 is applied to a variety of visas. It also sets out the criteria of standard Health Requirements upon which all visa applications are evaluated. It also includes requirements related to prejudice of access and significant cost.

PIC 4006A can be used to apply for temporary long-stay skilled business visas.

PIC is only applicable to a small number of family streams, humanitarian or skilled visas. The PIC also gives access to the minister’s discretion to consider waivers of health requirements.

This PIC allowed decision makers to consider other factors such as the financial cost and the need for compassion.

For the purposes of these PICs it is important to remember that information is sent to the committee by DIAC. Health requirements are also applicable if PIC 4007A or PIC 4007 are attached to the relevant subclass.

These PICs are only applicable to limited visas for family or humanitarian streams at the moment.

This was also true in the past. As in previous times, waivers of health requirements were allowed for humanitarian, Australian citizens and family members as well as permanent residents.

This traditional approach usually means that in the case of most permanent visa applicants (which also includes permanent skilled visa candidates), waiver of health requirement is not possible.

The Department decision-maker must take into account the possibility of attaching PIC 4006A and PIC 4007.

PIC 407 gives visa applicants the opportunity to provide additional medical reports or other documents regarding the applicant’s economic, social, and other circumstances in order to offset any MOC costs.

PIC 406A’s consideration is dependent on the employer sponsoring the visa application.

DIAC advises that 4006A waivers can only be granted to department in most cases. In the event that the MOC’s cost of health requires is significantly higher than the threshold, PIC 4007 cannot be granted. This could result in limited supply of services or access to other Australians.

Below are some additional factors DIAC will consider when granting a health waiver.

If applicant’s proposed occupation is in great demand in Australia or in a wide geographical area of Australia in which they are interested in residing,

The family members of the applicant have already settled or are looking to settle in remote, rural or local areas.

If family members’ care obligations limit applicant’s earning capacity or ability to develop skills related to their profession or trade.

Departments analyze the skills and qualifications of visa applicants, as well as the family members.

It also examines whether visa applicants and their family members can offset the MOC-identified and stated cost.

If they are forced to return home, it could cause them difficulties.

Department examines the education and occupational needs of visa applicants in Australia.

Department also checks to see if there are any non-migrating relatives who do not meet the health requirements. If so, it is impossible for them to ever move to Australia.

Not only do they consider the medical requirements of applicants, but they also take into account the applicant’s lifestyle and occupation.

Celesta is currently experiencing hearing problems and is wearing regular hearing aids. Her progress is steady.

Celesta attends kindergarten without any special help and she also practices daily speech with mother.

She is not causing any hardship on community and health services.

The department can therefore grant them exemption from the health requirement per PIC4007.

A couple can contribute as a family to the Australian economy because Dimitri, a qualified dentist, is married to a talented cook who specializes in Greek cuisine.

The department can approve waivers after reviewing the qualifications and skills of its members.

After considering Dimitri’s family situation, the department can grant waiver. His wife was married in March 2012. He moved to Australia in May 2012 and is currently facing discrimination at their village. Her husband left her as soon as they got married.

He plans to visit his wife and their daughter in Australia. After they have stopped sending money overseas, they will be eligible to purchase a house and contribute to Australia together.

It is evident that Dimitri’s wife can obtain a class 309 partner visa after looking at all the facts.

Thank you

Refer to

Retrieved on 12th May 2017.

The 1998 Migration Agents Regulations – Part 2.

MIA, ‘MIA Member’s Code of Ethics & Practice’. http://www.mia.org.au/documents/item/484>.

Accessed 12 May 2017.

Retrieved 12 May 2017.

Retrieved on 12th May 2017.

This site was last accessed 12/05/2017

Imelda Agel, “Who’s entitled to a” Health Waiver”, https://www.iargel.com.au/Portals/Iargel/Who%20is%20entitled%20to%20a%20Health%20Waiver%20IAA%20201011.pdf>.

Retrieved on 12th May 2017.

Nilesh Nandan, “Health Waiver & Requirements for Australian Visas”, https://myvisa.com.au/healthrequirements-health-waivers/>.

This document was accessed 12th May 2017.

APH, The Migration Health Requirement. file :///C/Users/Manisha%20Bhatia_Absas/Downloads/http—www.aphref.aph.gov.au–house­committee–mig–disability–report–chapter3%20(1).pdf>.

Retrieved 12 May 2017.

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