Policy: the Invisible ‘Law’ Determining Your Visa Application
The law around migration, and many other subjects of legislation, is made up of multiple interconnected elements. Specific to migration, we have:
Migration Act 1958 – this establishes the groundwork for the migration system, and the law around migration in Australia.
Migration Regulations 1994 – These list the requirements, criteria and obligations relevant to specific visas. The benefit of placing all this information within the regulations is that it allows the Government to respond to unintended problems with the migration system more quickly than if this information was in the Act.
Various directions published by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Many sections of the Act or the Regulations leave questions open to the minister to define at their discretion. These are often classed as ‘legislative instruments’.
What goes into a decision regarding your visa application?
Despite the published legislation being available, when it comes to the question of ‘is this applicant eligible for this visa?’, if we tried to come to an exact answer using only the legislation, and published legislative instruments, we’d find that there are instances where the language could be interpreted in multiple ways.
The Australian Government receives millions of visa applications in a given (non-pandemic) year. In addition to this large volume of applications, it is important to note that each application is assessed on a case-by-case basis by individual delegates of the Minister, each with the discretion as to how they will apply the available legislation.
Without something to narrow the scope of the question a decision maker has to answer, this could create chaos; visas would likely take longer to be granted as there would be more possibilities to consider, individual decision makers would have more opportunity to personalise their interpretation, meaning that similar applications could result in a different decision only because they were decided by a different individual (though this is still a natural by-product of the current system). All these issues would be substantially unfair to applicants, who deserve a degree of certainty, not only that their application will be judged on its merits, but also within a reasonable timeframe.
This is where ‘policy’ is introduced, and it can be considered as the range of interpretations the Government has assigned as the ‘right’ or ‘most appropriate’ in any given circumstance when faced with a decision that is open ended according to the legislation.
In both the Courts and the Parliament this is considered an acceptable way of achieving desired outcomes through legislation, and increasing overall efficiency in a high volume bureaucratic system. Paraphrased, the Federal Court has previously stated that in classes of immigration which are high volume, such as the granting of visas, or alternatively, have the potential to interfere with personal liberty, such as a decision to deport, similar cases should be treated similarly, as well as judged individually on their own merits.
Policy is legal, but policy is not law!
However, simply because policy guidelines are an accepted part of legal decision making, doesn’t mean that decision makers and policy writers are enlightened decision robots. Occasionally, mistakes are made, and discretion can be narrowed to the point where it is no longer discretion at all.
The simple fact is that all bureaucratic systems are made up of individuals, and sometimes individuals make mistakes. Policy must be sufficiently flexible to allow individual cases to be considered on their own merits, and policy must be consistent with statute. Australian legislation states that to exercise a discretionary power according to a rule without regards to the merits of the particular case is an improper exercise of discretionary power.
What does this mean for you?
This means that submitting a visa application without cleanly meeting all of the requirements can sometimes be like trying to force a puzzle piece in where it doesn’t quite fit - if you don’t take a moment to think, you can end up ruining the whole picture. In this case, that means asking yourself the question ‘how sure am I that I meet all the requirements?’.
But that doesn’t mean that following your dreams is a pointless exercise, sometimes the issue is that there is another visa that could better fit your circumstances, sometimes it’s that somewhere along the line a mistake was made with your application, and sometimes it’s that you only just fell short of the requirements, and weren’t aware of ways to bring the quality of your application up to standard.
This is why in scenarios where you are uncertain, it’s important to consult with a legal professional before risking what could be a substantial amount of time and money on an uncertain visa application. Having the tools, experience to assess your prospects of success from all angles can make the difference between a notice of grant, and a notice of refusal, and in the long run potentially save further time and money spent reviewing a decision you don’t believe to be correct.
How can Agape Henry Crux Help You?
If you want to find out more about your visa or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.