Assignment
Question 1
Patrick Sheehan is a citizen of the Republic of Ireland. Patrick came to Australia on a
Visitor visa (subclass 600). Patrick’s visa was subject to condition 8503, which means that the visa holder will not, after entering Australia, be entitled to be granted a substantive visa other than a Protection visa (while the holder remains in Australia).
Shortly before Patrick’s Visitor visa expired, Patrick applied for a Protection visa.
Unfortunately for Patrick, a delegate from the Department of Home Affairs (the Department) refused to grant Patrick the Protection visa. By the time a decision was made on Patrick’s Protection visa, Patrick’s Visitor visa expired.
Patrick appealed the rejection of his Protection visa application to the Federal Circuit Court of Australia (FCCA). The FCCA dismissed the appeal, ordering that Patrick pay the legal costs of the Minister for Home Affairs. Patrick has not satisfied the costs order made by the FCCA.
Subsequently, Patrick applied for a Carer visa (subclass 116), on the basis that he wished to stay in Australia to care for his sick brother, Tom Sheehan. Tom is an Australian citizen. Tom was involved in a serious car accident shortly after Patrick arrived in Australia on the Visitor visa. The Department found that Patrick’s Carer visa application was ‘invalid’, on the basis that Patrick was bound by visa condition 8503.
Patrick is of the view that visa condition 8503 does not apply to him, as he is no longer the ‘holder’ of the Visitor visa.
In light of the preceding, answer the following questions:
(a) Patrick seeks your advice as to the legality of the ‘invalid visa application' finding made by the Department? (10 marks)
(b) By applying for the Carer visa in Australia, will s 116(1)(b) of the Migration Act 1958 (Cth) apply? (5 marks)
(c) What advice would you give Patrick with respect to overcoming visa condition 8503? (10 marks)
(d) Assuming Patrick can apply for the Carer visa (subclass 116), will this application be impacted by Patrick’s non-payment of the costs order made by the FCCA earlier? (10 marks)
Question 2
Alex Toto is a citizen of Samoa. Alex is currently in Australia on a temporary subclass 820 visa, waiting for a decision to be made on his permanent subclass 801 visa.
Whilst in Australia, Alex was involved in a serious fight at the Cronulla Sutherland Leagues Club. Alex was charged and pled guilty to assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW). Alex received a sentence of nine months imprisonment, wholly suspended under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with a direction that Alex enter into good behaviour bond for a period of nine months.
Alex’s wife, Sandra Davis, is an Australian citizen. Alex and Sandra have a baby daughter, who was born in Australia shortly before Alex committed the serious criminal offence. Alex is passionate about Rugby League and has provided at least 200 hours of voluntary assistance to local junior football teams in South-western Sydney.
Whilst in Australia, Alex has grown very close to Sandra’s immediate and extended family. Alex suffers from Post-traumatic stress disorder, which developed as a result of being violently abused by his biological father in Samoa.
A delegate from the National Character Consideration Centre (NCCC) has written to Alex notifying him that the Minister for Home Affairs (either personally or by his delegate) is considering cancellation of his subclass 820 visa under s 501(2) of the Migration Act 1958 (Cth).
In light of the preceding, draft submissions to NCCC on behalf of Alex. Please ensure you refer to relevant government policy in preparing your submissions (20 marks).
Rules
1. This Assessment has a word count of 3,500 words (inclusive of footnotes).
2. Assignments must be referenced in accordance with the Melbourne University Law Review Association, Australian Guide to Legal Citation (Melbourne University Law Review Association Inc., 3rd ed, 2010). This guide is available electronically at:
http://mulr.com.au/AGLC3.pdf.
3. Format There are strict formatting requirements with which students are required to comply. The unit coordinator reserves the right to refuse to mark assignments that are not submitted in accordance with formatting requirements:
? Do not manipulate the margins of the page.
? Conform to a standard size and type of font such as 11.5-12 point fonts in
Calibri, Arial or Times New Roman. 200966 Australia’s Visa System 1 – Summer B 2017-2018/Section Two 4
? Assignments must be one and a half spaced or double spaced.
? Ensure your full name and student number appears on the footer of each page.
? Number all pages consecutively.
? Students must use footnotes in accordance with the AGLC.
? Do not provide a bibliography