TAKE-HOME EXAMINATION
• Assume that you are answering all of the below questions on 24 October 2019.
• Students are expected to undertake independent legal research to assist in completing this assessment (i.e relying only on the material uploaded to vUWS is not enough).
Question 1 (20 marks)
Wei initially came to Australia on a subclass 600 (Visitor) visa (Visitor visa). Wei’s visa was subject to condition 8503.
Shortly before Wei’s Visitor visa expired, Wei applied for a subclass 866 (Protection) visa (Protection visa). Unfortunately for Wei, the Department of Home Affairs (the Department) refused to grant Wei the Protection visa. By the time a decision was made on Wei’s Protection visa application, his Visitor visa had expired.
Wei lodged a review application in respect of the Department’s decision to refuse his Protection visa application with the Administrative Appeals Tribunal (the Tribunal). Shortly after lodging the review application, Wei met Emily (an Australian citizen) and formed a relationship with her. While waiting for the review application to be decided by the Tribunal, Wei married Emily who later became pregnant with his child. About two months ago, Emily started suffering from pregnancy complications.
In addition to lodging a review application with the Tribunal, Wei decided to apply for a subclass 820 (Partner) visa (Partner visa) with the Department one month ago. Wei wants to live permanently in Australia with Emily.
Emily does not have any other close relatives to take care of her and her pregnancy complications have worsened as a result of having been involved in a recent car accident. About a week after Wei submitted his Partner visa application, the Department notified him by email that his Partner visa application was invalid, and that the Department would not assess his Partner visa application.
Wei tells you that since he first arrived in Australia on his Visitor visa, he has not left Australia and that his review application has not yet been determined by the Tribunal.
(a) Advise Wei why his Partner visa application was deemed to be invalid by the Department and why the Department will not assess the application (10 marks).
(b) What advice would you give to Wei with respect to being able to make a valid Partner visa application while in Australia? (10 marks)
Question 2 (5 marks)
Carl is a UK citizen who is seeking to apply for a subclass 482 (Temporary Skill Shortage) visa (482 visa) in the coming weeks in order to work in Australia as an Architect. Carl’s only daughter (Lisa) is also a UK citizen and was born on 10 November 2001 in the UK.
When you ask Carl about his relationship status with Lisa’s mother (the mother) who is also a UK citizen, the most he is prepared to tell you is that things ended badly between them.
Carl is adamant that the mother will not give written consent for Lisa to migrate to Australia without the mother. Further, Carl is adamant that he does not, and cannot obtain a court order or any other evidence confirming that he has sole parental responsibility over Lisa.
In these circumstances, advise Carl if Lisa could still be included in the 482 visa application.
Question 3 (20 marks)
Paul is a Civil Engineer who lives in Australia with Kate (his wife) and Brian (his youngest child).
Andy (Paul’s other child) is 22 years old and lives in California in the US. Over the past year, Andy has been:
• earning $400 a week as a part-time mechanic;
• receiving $300 a week from Paul;
• renting a studio for $250 per week; and
• spending about $50 per week on food.
Paul is thinking of applying for a subclass 186 (Employer Nomination) visa (186 visa) in the Direct Entry stream with only Kate and Brian included in the application. Andy
is absolutely certain that he does not want to move to Australia as he has already developed substantial ties in the US. In addition, Andy is thinking of proposing to Kristie (his girlfriend) in the next few weeks and then moving in with her with the view of starting a family.
Paul discloses to you that Andy has previously been convicted of assault, drink driving and robbery for which he was incarcerated for 12 months in the US.
(a) Discuss whether Andy’s criminal convictions could affect Paul’s eligibility for a 186 visa. (15 marks)
(b) Would your answer to Question 3(a) be the same if Paul wanted to apply for a subclass 482 (Temporary Skill Shortage) visa instead? (5 marks)
Question 4 (10 marks)
Ashitha is in Australia and holds a subclass 500 (Student) visa (Student visa) which expires on 15 November 2019. On 1 October 2019, Ashitha’s subclass 485 (Temporary Graduate) visa (485 visa) application was refused, as she had not provided any evidence of meeting the English language requirement.
Ashitha wants to submit another 485 visa application as she believes she can now meet the English language requirement with an English test result she recently received. However, after having gone through various online forums, Ashitha believes that if a person has previously had a visa application refused in Australia, they cannot make a further visa application while in Australia.
(a) Which part of Australian migration law is Ashitha most likely referring to, and would this law affect her ability to re-apply for a 485 visa in Australia? (5 marks)
(b) Ashitha applied for her current Student visa while in Australia. Assuming Ashitha can re-apply for a 485 visa in Australia, would she be required to pay a subsequent temporary application charge? (5 marks)
RULES OF TAKE-HOME EXAMINATION
1. Weight: This assessment is worth 55% of the assessable component for the unit.
2. Due date: Your response to this assessment is due by 9 pm on 29 October 2019 (Sydney time).
3. Format:
a. Do not manipulate the margins of the page.
b. Use font size 12 with Arial font.
c. Paragraphs must be 1.15 spaced.
d. Number all pages consecutively.
e. Use footnotes in accordance with the Australian Guide to Legal Citation (4th edition) - see https://library.westernsydney.edu.au/main/guides/referencing- citation
f. Do not provide a bibliography.
g. Use headings between questions
4. Word count: The maximum word count is 3,500 words, inclusive of footnotes.