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Practitioner Legal Skills for Australian Migration Law - Question 1

Issues

  • Whether cancellation of Visitor Visa subclass 600 be valid?
  • Whether there is any power and grounds for cancellation of Visitor Visa?
  • Whether the Department of Home Affairs rely on the cancelled visa?

Rules

The Migration Act 1958

Application

In the light of the present facts and circumstances of the case the Act[1] is an Act which is provided by the Parliament of Australia and which also governs and regulated the rules and regulations which are related to immigration to Australia. The Act of 1958 basically fixes up the visa system of Australia universally and also permits the entry. It is also known as the Act which relates to the entry and also provides its presence in Australia for every individual. In the present case David being a citizen of China also obtaining a Visitor visa (subclass 600) in the Business Visitor Stream. The visa was valid for 6 months and David arrived before Australia Imposed restrictions on the travelling to Australia without a travel exemption. The reason of David to travel Australia was to meet with the possible business partners in Australia for an invention of local Australian sheep wool company and for which its negotiation went well. As the pandemic came into rise and have developed all across the world the business of David has slowed down and when David shared the situation with the business partners in Australia, they have asked David to join as manager of the Australian based company for the remaining term of the Visa.

The Visitor Visa (subclass 600)[2] is for tourists, family visitors, and for business. It is not a permanent visa also it does not allow any person to work, attain education for more than 3 months and is only granted in the conditions that the visitor has to be present in Australia on temporarily. In relation with the facts of the present case and circumstances the visa which David obtained was Visitor Visa (subclass 600) and the validity of the visa was for 6 months also it arrived before the restrictions imposed on the people travelling to Australia without any travelling exemption. According to the rules for attaining the Visitor Visa (subclass 600) provides that no person is allowed to work in Australia till the visa is valid and is in Australia not more than 3 months and will have to be in Australia cannot travel or leave Australia in the on going period of the Visa.

Section 116 of the Act[3] provides the power to cancel the visa. It says that Minister may cancel a visa if the person either he or she agrees that the decision to provide or grant the visa is totally based on a particular facts and the circumstances which are no longer the case or that do not exist anymore, subsection 2 of section 116[4] says that the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled. Furthermore, as per the rules for Visitor Visa (subclass 600) it can be used for business purpose as well with education and family-based causes, also a person can work and serve Australia for 3 months not more than that. Therefore, in such circumstance David can work and can serve as manager in the Australian Company, as yet there was the time period left on the expiry of the visa David holds regarding business and setup in Australia.

Conclusion

As abovementioned facts and circumstances of the case visitor visa do not permit any individual to work and study more than 3 months also the person serving the time of the Visitor visa (subclass 600) shall stay in Australia till the time he or she holds the visa. As an advisor to David the visa is valid and he can serve the nation for at least 3 months not more than that.

Practitioner Legal Skills for Australian Migration Law - Question 2

Issues

  • Whether the visa be cancelled if Sheriff travels Syria?
  • What grounds shall be for Department of Home Affair to rely upon?
  • Whether the grounds for cancellation be valid?

Rules

The Migration Act 1958

Application

In the light of facts, circumstances of the case and situation Protection Visa (subclass 866) is made part of the Australian Humanitarian Programme as it has obligation of non-refoulement under the Convention of 1951 which was related to the Status of Refugee and Convention for Refugee and the Protocol in 1967[5], Australian Protection Visa Refugee Subclass 866 are for those who are refugee or belong to the family member of a refugee as mentioned and defined under Refugee Convention or fulfils the criteria of the Complementary Protection in the Migration Act of Australia 1958[6]. The Protection Visa 866 is basically for those people who are refugees who are seeking for asylum reason is the fear of persecution in their own country[7]. In the present facts and situation of the case Sheriff Al Malik has a protection visa which is based on his being persecuted in Syria.

Sheriff was granted a Protection Visa (Subclass 866) five years ago. Sheriff applied for citizenship last year and knows the reason of still his application is in process. One day Sheriff receives the bad news about his mother that she is severely ill and wants to travel to Syria from Australia to visit his mother. Section 116[8] provides the power of cancellation, if the conditions of the section are violated then the authority shall lead to the cancellation of the visa, in the present matter the situation is genuine also there are no grounds provided in the rules of the Protection Visa (subclass 866) that a person who is suffering as refugee in other country shall not travel to its own country in the case of emergency. They shall fulfil the criteria of the Complementary Protection in the Migration Act of Australia, also, according to section 117[9] provides when can a visa be cancelled it has mentioned that a visa may be cancelled if a person entering the country is a non-citizen, when the non-citizen us in immigration clearance, when a non-citizen leaves Australia, when the person who is non-citizen is in the migration zone.

Conclusion

As abovementioned facts and circumstances of the case protection visa is provided to the person who is a refugee in any other country when the situation is not under control in its own country and the person needs asylum in other country. Therefore, it is nowhere mentioned that the person cannot travel to its own country in the case of emergency, Sheriff has applied for citizenship and it is under process as being refugee it may take time to get the clearance in attaining citizenship. Therefore, the visa was provided 5 years ago and Sheriff has rights to travel to other countries if needed and so can go Syria to visit his mother.

References for Practitioner Legal Skills for Australian Migration Law

Legislation

Migration Act 1958

Section 116

Section 117

Convention of 1951

Refugee and Convention for Refugee and the Protocol in 1967

Other Sources

www.australiavisa.com/immigration-news/visitor-visa-subclass-600/

www.australiavisa.com/immigration-news/introduction-protection-866-visa/

https://www.visasavenue.com/australia-immigration/protection-visa-subclass-866/

https://www.aussizzgroup.com/india/protection-visa-866

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