LAWS508 Australain Visa System- Cancellation and Refusals
Abdul has resided in Australia since he was 2 years of age (Abdul was born on 10 January 1996) and entered Australia under the auspice of a Class XB, Subclass 200 Refugee visa. Abdul rebelled when he was in his late-teens and got involved with the wrong friendship group. Consequently, in June 2016, Abdul was convicted of robbery (section 411 of the Criminal Code 1899 (Qld)) and was given a head sentence of 16 months imprisonment (Abdul only served 2 months before being released on Parole). Since his time in prison, Abdul has turned his life arounAd and is now happily married to an Australian citizen (Carey) and they have a newborn (Sarah) together. On 18 February 2021, Abdul was playing with his child at the park and there was an altercation with another parent. Abdul lost his temper and punched another man, knocking his teeth out. The police were subsequently called and Abdul was found guilty of assaults occasioning bodily harm (section 339 of the Criminal Code 1899 (Qld)) and given a head sentence of 6 months imprisonment, to be suspended after serving 2 months. Abdul is currently incarcerated serving his sentence and will be released on 27 November 2021. Carey has engaged you to provide a formal letter of advice on the following: a) Whether Abdul is liable for visa cancellation under section 501(3A) of the Migration Act 1958 (Cth)?
b) If Abdul’s visa is cancelled, what is the process in accordance with the relevant legislation and case law?
c) If Abdul’s visa is cancelled, what does the Delegate take into account when considering any revocation? Please refer to the facts and relate them to the relevant law/parts in Ministerial Direction No. 90. Please ensure your answer includes all relevant law (use footnotes) and you have detailed how you reached your conclusion.
Question 2 – Matthew Matthew is currently the holder of a Class VC, Subclass 485 Temporary Graduate (‘VC 485’) visa which is due to expire in 3 years. Matthew has come to you after lodging a Class SN, Subclass 190, Skilled – Nominated (‘SN 190’) visa in July 2021. Matthew received formal correspondence (dated 18 October 2021) from a delegate of the Department of Home Affairs advising him that they have reason to believe the IELTS test provided with the new application is not genuine and referred specifically to Matthew’s ability to meet Public Interest Criteria 4020. The natural justice letter provides Matthew with an opportunity to comment on the adverse information. The IELTS test in question was not provided with the VC 485 visa. Matthew has advised that the IELTS document is not genuine and he panicked as he believed the state sponsorship for New South Wales was closing and he would be unable to lodge the SN 190 visa in time. Matthew is a qualified Biomedical Engineer from his home country (Hong Kong) and has been studying Bachelor of Medicine in Australia in order to become a qualified medical practitioner (which he obtained two years ago in June 2019). Matthew has an exceptional skill-set and has been working in a clinic in Sydney developing a Covid-19 cure for the last 12 months. Matthew has advised that he is the only member in the team with his skill-set and they are close to a break-through. Please advise Matthew of the following in a formal letter of advice: a) Is Matthew’s SN 190 visa at risk of refusal in accordance with Public Interest Criteria 4020? If so, why?
b) What should the natural justice letter contain from the Department of Home Affairs in accordance with the law?
c) Provide submissions on why Matthew may be able to satisfy subclause 190.216, having regard only to Public Interest Criteria 4020.
d) Advise Matthew in relation to his SN 190 visa application (you must include what potential ramifications Matthew could face in the future, having regard to Public Interest Criteria 4020).