s8101165 | UTKARSH PATEL

UTKARSH PATEL
S8101165

Graduate Diploma in Migration Law

LML6002 – AUSTRALIAN MIGRATION LAW Assessment Task 2 – Semester 2,

2023
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As a recently graduated registered migration agent and have also started my

own firm, I am strictly following Migration (Migration Agents Code of Conduct)
Regulations 2021. I always try to make sure that in my firm everybody must
follow the Code of Conduct as it is mandatory to give the right assistance to
our clients.

Here is a client named Achariya Chea, she is a citizen of Cambodia. She came to
my office and told me about her immigration history. She came to Australia on
a Class FA Visitor (subclass 600) visa in the Family Sponsored Stream. Her visa
was valid for three months. She is now facing issues with her visa application
and seeks my advice on how to get positive results.

(a) As per my understanding, Achariya’s Partner Class UK/BS Subclass

820/801 visa application was determined invalid due to the following
reasons:

Achariya's immigration situation is subject to specific visa conditions and legal

provisions under Australian migration law. She initially entered Australia on a
Class FA Visitor (subclass 600) visa, which falls under the Sponsored Family
Stream, governed by Schedule 2 of the visitor visa regulations. 1 This subclass of
visas typically comes with certain limitations and conditions. 2

One of the key conditions imposed on Achariya's visitor visa is 8503, as

outlined in sch 2 of the Migration Regulations 1994. 3 This condition is quite
significant, as it restricts her ability to lodge substantive visa applications, with
an exception for protection visas.4 In essence, Achariya is prohibited from
applying for most other types of visas while this condition is in effect. 5

As per sch 1 of the Migration Regulations 1994, Achariya has fulfilled all the
validity criteria (including correct form, visa application charge, and residential
address) stated in sch 1.67 But sch 1 is not the only criterion to satisfy the
validity of her application. To better understand the implications of Condition
8503, we must refer to s 46 of the Migration Act 1958. 8 Under this section, the

1
Migration Regulations 1994 (Cth) sch 2 cl 600.23.
2
Migration Regulations 1994 (Cth) sch 2 cl 600.6.
3
Migration Regulations 1994 (Cth) sch 2 cl 600.611(2).
4
Migration Regulations 1994 (Cth) sch 8 cl 8503.
5
Migration Regulations 1994 (Cth) sch 8 cl 8503.
6
Migration Regulations 1994 (Cth) sch 1 Item 1214C.
7
Migration Regulations 1994 (Cth) sch 1 Item 1124B.
8
Migration Acts 1958 (Cth) s 46.
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application for a Partner Class UK/BS Subclass 820/801 visa is deemed invalid if
condition 8503 is attached to the applicant's previous visa which she held while
entering Australia.9 In other words, Achariya is ineligible to make a valid visa
application for this visa due to the presence of Condition 8503 on her current
visa.10

Moreover, s 46(1A)(b) of the Migration Act 1958 stipulates that Achariya has
been subject to Condition 8503 since her last entry into Australia. 11 This means
that the condition has been consistently applied to her visa during her stay in
Australia.12

An important provision to consider in Achariya's case is s 41(2)(a) of the

Migration Act 1958.13 This section states that while Achariya remains in
Australia, she will not be granted any visa except a protection visa or a
temporary visa of a specific kind.14 In essence, this section reinforces the
limitations imposed by Condition 8503. It means that Achariya's options for
obtaining another visa are severely restricted.

(b) Is Achariya able to make a valid application for a Medical Treatment Class
UB Subclass602 visa? Below is the answer to this question:

As per sch 1 Item 1214A, Achariya has fulfilled all the criteria listed in the
regulations.15
 Achariya completed the form that has been approved and defined by
the minister in a legislative instrument.16
 In line with the Migration Regulations of 1994, Achariya also paid the
first payment of her visa application charge at the time of application. 17
 Achariya must complete the application in the manner and at the time
and place authorized by the minister in the law.18
 Achariya must not be in immigration clearance and the application must
be submitted in or out of Australia.19

9
Migration Acts 1958 (Cth) s 46(1A)(b).
10
Migration Acts 1958 (Cth) s 46(1A)(b).
11
Migration Acts 1958 (Cth) s 46(1A)(b).
12
Migration Acts 1958 (Cth) s 46(1A)(b).
13
Migration Acts 1958 (Cth) s 41(2)(a).
14
Migration Acts 1958 (Cth) s 41(2)(a).
15
Migration Regulations 1994 (Cth) sch 1 Item 1214A.
16
Migration Regulations 1994 (Cth) sch 1 Item 1214A(1).
17
Migration Regulations 1994 (Cth) sch 1 Item 1214A(2).
18
Migration Regulations 1994 (Cth) sch 1 Item 1214A(3)(a).
19
Migration Regulations 1994 (Cth) sch 1 Item 1214A(3)(c).
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 Achariya must accompany herself with the documentation provided by

the minister in the legislative instrument because she is not the holder
of any substantive visa.20 As per the legislative instrument, the
documentation that must accompany an application is Form 1507 –
Evidence of Intended Medical Treatment (includes consultation) which
has been completed and signed by a registered medical practitioner. 2122

Achariya cannot make a valid visa application for a Medical Treatment Class UB
Subclass 602 visa as she first entered Australia on a Class FA Visitor (subclass
600) visa which has condition 8503 mentioned on her visa condition which
states No Further Stay and that has not been waived. 23 Even if she fulfills all the
above-mentioned criteria of sch 1, still she is restricted from making a valid
visa application as per s 46 and s 41(2)(a) of the Migration Acts 1958.

(c) I am required to prepare a submission to the Minister addressing the

relevant regulatory requirements in the event there are restrictions on
Achariya's ability to make a valid application Medical Treatment Class UB
Subclass 602 visa.

As Achariya has condition 8503 no further stay on her first arrival visa which
was a Class FA Visitor (subclass 600) visa. Due to this condition, she is
restricted from applying for any visa except a protection visa or some
temporary visas.24 As a registered migration agent, I am making this submission
for the waiver of condition 8503 as per reg 2.05(4) 25 and s 41(2A)26 as she
wants to apply for a Medical Treatment Class UB Subclass602 visa.

Below is the submission for the waiver of condition 8503:

20
Migration Regulations 1994 (Cth) sch 1 Item 1214A(3)(e).
21
Department of Home Affairs (Cth), Migration (IMMI 17/030: Subclass 602 (Medical Treatment) Visa –
Approved Form) Instrument 2017
22
Migration Regulations 1994 (Cth) sch 1 Item 1214A(3B).
23
Migration Regulations 1994 (Cth) sch 8 cl 8503.
24
Migration Acts 1958 (Cth) s 41(2)(a).
25
Migration Regulations 1994 (Cth) reg 2.05(4).
26
Migration Acts 1958 (Cth) s 41(2A).
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Dear Sir/Madam,
RE: VISA CONDITION 8503 – NO FURTHER STAY, WAIVER REQUEST
APPLICANT: Achariya Chea
DATE OF BIRTH:
VISA DETAILS:
PASSPORT DETAILS:
DATE OF ARRIVAL:
As a registered migration agent, I am representing the applicant who intends to
submit a request for the removal of Condition 8503 which is currently attached
to her Class FA Visitor (subclass 600) visa in the Family Sponsored Stream.
I request this waiver on behalf of my client on account of compelling medical
considerations, as she has been informed by a licensed plastic surgeon that she
is presently incapacitated to depart Australia. This request is put forward to
ensure that she can get the additional medical treatment and care that she
requires to recover the movement in her right hand.

Background
I have been advised by Achariya that she arrived in Australia to visit her family
member who sponsored her visa for her Class FA Visitor (subclass 600) visa in
the Family Sponsored Stream. Some days ago, Achariya got an injury on her
four fingers on her right hand whilst working in a chicken factory. She was
severely injured, and her plastic surgeon has advised her not to travel as she
requires further medical treatment and recovery to make sure that she regains
movement in her right hand. This is the reason she wants to apply waiver for
condition 8503 so that she can stay back here and apply for a Medical
Treatment Class UB Subclass 602 visa. So that she can get the best medical
treatment and she can restore her health again.
I respect that Achariya’s Class FA Visitor (subclass 600) visa was granted in the
Family Sponsored Stream and in addition to the 8503 condition, also bears the
8531 condition.
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Application
I am submitting this application in accordance with Regulation 2.05(4) of the
Migration Regulations 1994, for the following primary reasons: Since the
applicant's (Achariya Chea) Class FA Visitor (subclass 600) visa was granted,
certain compelling and compassionate circumstances emerged over which
Achariya Chea had no control, causing a significant change in her
circumstances.
For subsection 41(2A) of the Act, the circumstances in which the Minister may
waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

(a) since the person was granted the visa that was subject to the condition,
compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances;
and
(b) if the Minister has previously refused to waive the condition, the Minister is
satisfied that the circumstances mentioned in paragraph (a) are substantially
different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in
writing.

It is submitted that the medical assessment of the applicant (Achariya) as being

unfit to travel represents a major change in circumstances. Achariya’s medical
condition is that she is not fit to travel as she has recently had surgery on her
right hand. Her medical expert has strictly advised her not to travel or do any
kind of physical activity until her hand is fully recovered.
As a registered migration agent, I know that Achariya’s application for a Partner
Class UK/BS Subclass 820/801 visa was invalid, and she was very stressed
because of that. In addition, she also severed her fingers which created
unexpected compelling circumstances for her situation. I am writing this
submission letter for Achariya as her situation is tense and her physical health
is such that she is in need of the waiver of condition 8503, as per Regulation
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2.05(4) of the Migration Regulation 1994. So that she can stay back in Australia
and apply for a Medical Treatment Class UB Subclass 602 visa for her health to
be recovered by a medical expert.
According to the claim, the most recent changes in the situation reflect
compelling and compassionate circumstances.
PAM3: Div 2.1 reg 2.05 refers to the types of circumstances envisaged. We rely
in particular on the ‘unfitness to travel’ circumstance, which is referred to in
the following extract from the policy:

Unfitness to Travel

If a visa holder sustains a serious injury or contracts a serious medical condition

in Australia, such that it would be unreasonable to expect them to leave until
they are considered fit for travel, this might satisfy the requirements for a
waiver under regulation 2.05(4). Complications associated with pregnancy or
childbirth that leave the visa holder unfit to travel also might satisfy the waiver
requirements on that basis.

Pre-existing medical conditions also might satisfy the requirements for a waiver
under regulation 2.05(4), if the condition has deteriorated to such an extent
that it can be said that the circumstances have developed since the person was
granted the visa, and provided all other regulation 2.05(4) requirements have
been satisfied.

When assessing such claims, officers should consider the medical evidence
provided in support of the claim, such as any evidence provided by a registered
medical practitioner.

I submit that the surgery of Achariya and the complications that have arisen
should she travel, fall within the waiver provisions as outlined in PAM3: Div 2.1
reg 2.05, which refer to the complications associated with the surgery of my
client Achariya. Her surgeon has advised her not to travel at this advanced
stage of surgery as this would not be beneficial to her health condition as she is
restricted from doing any physical movement until she is fully recovered. She
would risk her health and put herself in trouble if she travelled in this
condition.

My client Achariya is not seeking to stay permanently in Australia, she just

wants her health to be recovered by the best medical practitioners. She will
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return to Cambodia as soon as she is fully recovered and fit to travel. For the
same, she is seeking a Medical Temporary Class UB Subclass 602 visa.

Request

In view of Achariya’s particular circumstances, considering the health risks she

faces and the potential harm she may suffer if she is forced to return to her
home country Cambodia prior to her recovery, particularly during this
advanced stage of surgery, I request that the 8503 no further stay condition
attached to Achariya's visitor visa be waived so that she can remain in Australia
to apply for a Medical Treatment visa.

Yours faithfully

Agent Name

MARN
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Bibliography:

Department of Home Affairs (Cth), Migration (IMMI 17/030: Subclass 602

(Medical Treatment) Visa – Approved Form) Instrument 2017
Migration Regulations 1994 (Cth)
Migration Acts 1958 (Cth)