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Migration Law - Answer 1

a. Yes, the agent fulfilled his obligations towards the client. He heard his query, sought relevant information and advised him as to what the immediate course of action should be, which would prevent the client from running into troubled waters with the law. Further, the agent provided the client with a realistic picture as to the possibilities ahead, from what he could deduce from the facts presented. He was also advised to not work until the issue of his visa renewal was not sorted, which in my personal opinion, remains a sound advice from the point of view of an immigration agent.

b. The agent, although did attempt to build a rapport with the client at the beginning of the interview, it did seem like the agent was a little impatient and jumpy. This did not allow the client to spell out fall of his information in an organized manner, thus rendering the exchange somewhat haphazard and less effective. Moreover, the quality of the agent’s microphone was another issue, which caused his voice to sound unpleasant and shrill. Lastly, the agent should have issued some cautionary warnings of his own, such as avoiding public nuisance and other petty violations which could cause the client inconvenience and a possible run-in with local law enforcement.

c. The degree of professionalism, albeit present, could certainly have been there in greater concentration. For instance, the agent’s cellphone should have been on silent mode. Further, the agent should have allowed the client to speak out the facts from his own side before arriving at conclusions, and he should’ve sought preliminary details, such as the full name of the client and the fact of his Canadian citizenship at the onset of the conversation itself. The professionalism could have been higher.

d. No, I believe that the agent did not employ the correct technique for interviewing the client. The correct technique would have been to initiate the conversation by asking for basic information about the client to help arrive at a rough sketch of who the client is and what the purpose of his visit was. Further, it would have been advantageous to listen to the client’s testimony as regards the controversy which brought him to the officer in the first place, which was definitely not followed by the agent. In short, the agent failed to extract all relevant information from the client before beginning consultations with him as regards potential solutions to his issue of extending his visa.

e. I would have initiated the conversation by collecting all primary information from the client, including his full name, his present place of dwelling, his purpose of visit to Australia, the status of his previous visa, the status of its expiration and the relief he’s seeking. More so, I would have ensured my phone remained on silent, so as to abate any disturbances during the meeting. Next, I would have made the client familiar with the law relating to immigration in Australia, and informed him of the potential ways forward.

Migration Law - Answer 2

Date: September 7, 2020

From: Brijesh Patel

To: Supervisor

a. The client is Batchelor, Mark Francis. Mark was born on March 13, 1971, and he holds Canadian citizenship. He had arrived in Australia on June 6 of this year. His marital status is divorced, and he has two sons. The purpose of his arrival in Australia, as mentioned by himself, was his engagement by the Government of Queensland for a major IT Project.

Coming to the issue for which we were reached out to by Mr. Batchelor, his temporary work visa expired a while ago and remains as such, owing to the inability of Mr. Batchelor to renew the visa through his own efforts. From his own words, it was learnt that the client had attempted to renew the visa but failed in the same, and legally speaking, enjoys the status of merely being an unlawful non-citizen in Australia at this very moment.

Mark at present requires an extension of about 4-6 weeks because his work has not yet been completed.

b. The issue regarding the client’s present legal status in Australia is reliant on the fact of his visa expiring and his continuing to remain in Australia, with his work not yet having finished. Based on the facts on record, Mark had a valid work visa with which he came to Australia. The fact that the same has expired, and he might be considered to be an unlawful non-citizen should not outweigh the fact that Mark did in fact bonafide attempt to renew the same through his own efforts. Although he failed in accomplishing the same and his visa remains expired, it is presumable that his remains a genuine case of the cause remaining outside of Mark’s control.

At present, however, Mark is no more than an “Unlawful Non-Citizen” since he continues to reside within the Australian territory without having a valid visa1. Whether his previous visa reflects any genuineness on behalf of Mr. Batchelor is dependent on the Minister.

c. As per Part 2, Division 1, Section 13 of the Migration Act of 1958 (Cth), a “Lawful Non-Citizen” has been defined as being a “non-citizen in the migration zone” who is the holder of a valid visa (permanent or temporary). Furthermore, a permitted resident of the “Protected Zone”, who continues to dwell within a protected area as regards the performance of traditional activities is a lawful non-citizen.

“Unlawful Non-Citizens” can be both detained and ejected out of Australia in keeping with the concerned law in force2. Every individual who does not possess an Australian citizenship and whoever has entered into Australia or alternatively, reached there, with an objective to admit themselves for either a provisional or perpetual stay qualify as “non-citizens”.

Where a non-resident doesn't hold a substantial visa, that non-resident is unlawful and consequently subject to detainment and expulsion. Non-residents may get unlawful in various manners including by over-remaining a brief visa, by breaking a visa condition and having their visa cancelled3, or by virtue of consequential cancellation, i.e. they were a dependent of a visa holder whose visa has been cancelled4. Individuals who supply frivolous or inadequate information along with their visa application or their passenger card, or alternatively submit a counterfeit certificate to the Department of Home Affairs (DHA) or the Administrative Appeals Tribunal (referred to as AAT) may also subsequently have their visa annulled upon the noticing of the irregularity, as is provided under S. 101 through S. 109 of the Migration Act. A visa can also be cancelled on the basis of character, by way of S. 501 of the Migration Act.

Under the same migration legislation5, an “Unlawful Non-Citizen” has been described as one who is “a non-citizen in the migration zone”. It is such an individual who qualifies as an unlawful non-citizen. The legislation further explains that, “a non-citizen in the migration zone” indicates towards individuals who were immediately prior to 1 September 1994, unlawful entrants within the meaning of the Migration Act.

An unlawful non-citizen has the option of applying for a bridging visa. This visa, in the event of being granted, allows the successful applicant of the bridging visa to be prevented from being declared as an unlawful non-citizen and further being remanded on that grounds.

An individual rejected a connecting visa may reserve an option to look for survey of the choice to the AAT. The AAT must choose the application inside seven working days, or longer by concurrence with the candidate. Spanning visas keep a non-resident legitimate until a meaningful visa is allowed. Crossing over visas can't be applied for in movement leeway (for example at the air terminal or port of appearance).

d. The client would be required to provide records of his engagement into the employment with the Queensland Government. Additionally, he will have to produce his citizenship documents as regards his citizenship of Canada to establish the fact that he is in fact a bonafide non-citizen. Further, he will be required to provide his expired visa, along with additional details relating to the same. It was mentioned by Mark that he had attempted to renew the visa through the internet portal that has been provided by the Government for self-service, although it was also submitted that the application did not go through the portal. A proof of attempted renewal would also be instrumental in tilting the odds in the client’s favor, such as the logs of his computer from the evening of the said attempt.

Identity and integrity requirements are increasingly a focus for DHA. If a visa is refused because the applicant’s identity could not be established6, a ten-year ban on further visa applications will apply.

e. The judgement mentioned by the Supervisor was:

“Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25”

References / Bibliography for Migration Law

Legislations

Migration Act, 1958 (Cth)

Cases

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) HCA 25

Books

‘Queensland Law Handbook, 2020’ (Caxton Legal, Brisbane)

Others

High Court of Australia: http://eresources.hcourt.gov.au/showCase/2014/HCA/25

The Australian Federal Registration of Legislation: https://www.legislation.gov.au/Details/C2018C00337/Download

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