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LML6005 Visa Compliance And Cancellation12

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  • Course Code: LML6005
  • University: Victoria University
  • Country: Australia

Question:

This subject, LML 6005 Visa Compliance and Cancellations, examines the regulatory framework that ensures compliance with Migration Law in Australia. Students will cover grounds for refusal or cancellation of visas; sanctions for breaches of visa conditions; the consequences of unlawful status; detention, removal and deportation and offences under the Migration Act. Students will learn to appraise pathways and options open to clients, determine strategies and formulate submissions. The subject is designed to further to equip participants advanced skills needed to determine and advise on visa options and the research capacity to find appropriate legal materials. Topics include: Advocacy, legal research and reasoning, statutory interpretation, cancellations and compliance factors in migration law.

Learning Outcomes:

By the conclusion of this course, it is intended that students who have successfully completed all of the course requirements will be able to:

1. Identify and analyse requirements and procedures relating to refusals, compliance and other sanctions;

2. Recognise when and how to undertake appropriate research to prepare submissions, and effectively advocate for clients;

3. Determine and implement appropriate advocacy strategies in negotiation with key stakeholders;

4. Plan and prepare communication strategies with key stakeholders including clients and government;

5. Demonstrate an understanding of ethical and professional standards including duty of care, informed consent and the nature of independent advice.
 

Answer:

The issue here is to determine the legislative power or authority Narelle Patel’s Visitor Visa (Class FA) subclass 600 with conditions (8101 and 8201) would be cancelled for a breach of conditions.

The provisions of the Migration Act, 1958 within Australia, deal with visa cancellation and all other visa related issues. As per the provisions of Section 116 of the Migration Act, 1958 an individual’s visa may be cancelled if any of the criteria prescribed in the section are met. The breach of conditions of a visa would warrant that a particular visa is cancelled. This is prescribed under Section 116(3) of the Migration Act, 1958. The visa condition 8101 requires that a person would not obtain employment during the visa. Further, it has been mentioned under section 116 (1)(b) of the Act that the visa holder should have to maintain all the condition of the visa. Further, under section 117 (1) (d), it is stated that if a visa holder has failed to comply with the terms of section 116 (1), his visa could be cancelled. A visa holder should have to stay in Australia to that period mentioned in the visa application; else, he will be penalized for breaching the provision of section 122 of the Act.  

 

Application

Visa cancellation in Narelle Patel’s case would be because of breach of conditions as prescribed under Section 116 (3) of the Migration Act, 1958. This would be due to a breach of condition 8101 relating to employment during the course of her visa. Thus the statutory basis for the cancellation would be Section 116 of the Migration Act, 1958.

Narelle Patel’s visa would be cancelled under Section 116 of the Migration Act, 1958.

In this scenario, the issue to be assessed is if after the cancellation Narelle can apply for a Partner Visa (Class UK/BS). In addition, if so the form of bridging visa she will have to apply for. The conditions, which could be attached to such a bridging visa, must also be stated.

Visa cancellations ruled by Section 116 of the Migration Act, 1958 that would warrant the person obtaining a bridging E class visa. With this visa the individual and apply for further visas while remaining in Australia. Section 5CB of the Migration Act, 1958 defines de facto partners and this class of partners is granted Partner Visas.Regulation 1.20J of the Migration Regulations, 1994 puts a limitation on partner visa sponsorship.  However, according to section 46 of the Migration Act, the holder should have to make a valid visa application.

Under these circumstances, Narelle Patel would be allowed to apply for a partner visa and would qualify as a partner under Section 5CB of the Migration Act, 1958. Under these circumstances she would also be holding a Bridging E class visa due to the cancellation of her visa under the provisions of Section 116. This visa would have conditions 8101 and 8564 with it mandating no employment and no involvement in criminal acts.

 Yes, Narelle Patel would be able to obtain a partner visa and would hold a Bridging E class visa.

 The issue here is if Narelle would have to apply for a further bridging visa for the application for her partner visa.

Section 74 of the Migration Act, 1958 defines applications for further bridging visas. This section mandates that when an active bridging visa is held by a person the person would not need to apply for further bridging visas.

As assessed in the above question Narelle Patel holds a bridging E class visa which has conditions 8101 and 8564 with it ensuring that she would not secure employment and would not be involved with criminals or criminal acts. In such a case she would not be required to obtain a further bridging visa to apply for a partner visa as she seeks to do.

Conclusion

 Narelle Patel would not need a further bridging visa in case she applied for a partner visa as she already holds the same.

In this case what must be determined is the visa held by Narelle Patel after her visa cancellation and through each of these above stated determinations.

As clarified in by Section 74 of the Migration Act, 1958 a person holding a bridging visa would not need to apply for further bridging visa. It has also been clarified that after a visa cancellation under Section 116 the person would obtain a bridging E class visa. Further, it has been clearly mentioned in section 74(1) of the Act that if the minister has canceled the visa application, the holder may apply for a bridging visa within the period of thirty days.

A bridging E class visa was granted to Narelle Patel as her visa was cancelled under Section 116 of the Migration Act, 1958. Thus she was granted a Bridging E class visa and she would be holding the same throughout these determinations. Due to Section 74 of the Migration Act, 1958 she would not have to apply for a further visa.

 

References

Narelle would be holding a bridging E class visa throughout these determinations.

Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in Australia: introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.

McAdam, Jane. "Australia and asylum seekers." (2013): 435-448.

Phillips, Janet, and Harriet Spinks. "Immigration detention in Australia." Parliamentary Library 20 (2013): 1-8.

Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40.12 (2014): 1915-1933.

Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-266.

OR

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