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Migration Law | Law Sample | M100

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Question

SCENARIO
John Buffridge is a recently registered migration agent. He is approached by his first client, Janice Wu (aged 26), a citizen of Thailand, who arrived in Australia four months ago on a Visitor visa Class FA, sub class 600. Her visa was valid for a three month stay. Her visa contained the following conditions 8101, 8201, 8501, 8503 and 8558.
Janice informs John that as soon as she arrived, a friend advised her to apply for a Protection visa Class XA, subclass 866. Her visa was refused on the basis that being disgruntled against the Thailand government about the lack of opportunities for young graduates does not amount to a “well-founded fear of persecution” under section 5J of the Migration Act (1958). She did not apply for review of the decision within the prescribed timeframe. However, Janice married an Australian citizen two days ago and she asked John to apply for a Partner visa Class UK/BS subclass 820/801. As it was done in a rush, John asked her to provide him with the visa application charge together with $1,000 for professional fees received in cash. John said he will send her an account later. No other documents were provided to her.
John lodged the application today and was informed by the case officer at the counter of the Department of Immigration and Border Protection (DIBP) that the application was invalid. John approaches you for assistance as to what he should do in light of the view expressed by the DIBP case officer.
QUESTION
You are required to prepare a letter of advice for John addressing the following issues:
1. Has John lodged a valid visa application for the Partner visa Class UK/BS subclass 820/801? What are the requirements to make a valid visa application in these circumstances? Explain what John should have done in the circumstances.

2. Has John breached any of the requirements in the Code of Conduct? If so, explain what provisions he has breached and what John should have done in the circumstances. Be specific.

3. Assuming condition 8503 was waived, could Janice instead apply for a valid Temporary Business Entry visa Class UC subclass 457 in Australia?

Solution

1.1 Validity of application for Partner visa Class UK/BS subclass 820/801

Therefore, assuming that visa application lodged by John is not supported with documents stipulating the waiver of Condition 8503, the visa application for Partner visa Class UK/BS subclass 820/801 does not qualify the test of validity.

Also, since Janice’s application for Protection Class visa was denied, currently she does not hold a substantive visa owing to the expiration of the Visitor visa Class FA, sub class 600. Accordingly, she is to be considered as an unlawful non-citizen.[2] Hence, as per Schedule 3[3] of Migration Regulations 1994, there are additional criteria that need to be met. And in the absence of the availability of facts contrary to the absence of fulfillment of such criteria, it can be safely inferred that the visa application stands invalid in its current form.

1.2 Requirements of a Valid visa application

A valid visa application for Partner visa Class UK/BS subclass 820/801 would require that Janice fulfills the Primary Criteria as mentioned under Clause 820.21 which specifies the criteria to be met at the time of application.[4]

820.211 (1) The applicant:

                     (a)  is not the holder of a Subclass 771 (Transit) visa; and

                     (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

 

It is abundantly clear that Janice is not the holder of a Subclass 771 (Transit). Hence, the first criterion as per Clause 820.21 stands fulfilled. Now, as per facts of the present case, it is only essential to meet the requirements of sub-clause (2) since the other sub clauses do not relate to the facts.[5] It is clear that Janice’s visa application for Partner visa Class UK/BS subclass 820/801 could satisfy some conditions mentioned in the primary criteria specified in sub clause (2) since after her marriage, she has acquired the status of spouse of an Australian citizen

[1] Migration Regulation 1994 Schedule 8.

[2] Migration Act 1958 s 13.

[3] Ibid Schedule 3.

[4]Migration Regulation 1994.

[5] Scenario.

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Considering the above, the judges held that the approach adopted by AAT (that is, the submission of Mr Han was affirmed) was the correct approach.

  1. The implications of the case in terms of the residency requirements for a spouse or de facto partner of an Australian citizen wishing to become a citizen of Australia.

The case has highlighted a very important question dealing with the eligibility requirement to become and an Australian citizen by conferral. The main issue is for getting a general residence requirement under section 21 and section 22 of the Australian Citizenship Act 2007 (Cth), whether the applicant (who is seeking his application at the discretion of the minister under section 29 of the Act in order to comply with the general residence requirements as per section 22 (1) (a) and (c) of the Act) has to establish that either he or his spouse or de facto partner was the citizen of Australia OR it is enough that the applicants’ spouse or de facto partner is the citizen of Australia when the applicant has applied for citizenship……

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