Neil is a UK national. On 1 July 2013, he was granted a subclass 187 Regional Sponsored Migration Scheme visa in the Direct Entry stream to take up a teaching position in the Peace Studies Department of Flowerchild College in Nimbin on the far north coast of NSW. Neil arrived in Australia on 1 August 2013 and was supposed to start teaching classes on 1 September 2013.
Neil, however, only turned up to two of the lectures he was supposed to teach. The rest of the time he spent attending demonstrations against various "fascists" and "bad vibes", as he termed them. Neil claimed that publicly standing up for "peace, love and vegetable rights" was part of his duties as a Peace Studies lecturer. When the Dean of the Faculty, Dr Balowski, pointed out that attending demonstrations was not included in Neil's Statement of Expectations, Neil called him a "negative vibe merchant". He announced that he had secured a new position at the University of Oodnadatta in northern South Australia, where he had successfully negotiated a clause into his agreement allowing him to organise and attend student demonstrations. Dr Balowski informs the Department that Neil has left his employment.
- What cancellation power would be used to cancel Neil's subclass 187 visa?
- What procedures must the Department go through before making a decision?
- What factors are relevant in exercising the discretion to cancel or not to cancel Neil's visa?
Refer to, and cite, the relevant law and policy in support of your answer.
Question 2
Elena Zhirinovska is an Estonian national currently in Australia on a subclass 417 Working Holiday visa, which expires on 31 December 2014. She has applied for a subclass 457 Temporary Work (Skilled) visa based on her employment as a chef in an Estonian restaurant in Canberra. The restaurant's application for recognition as a Standard Business Sponsor was approved on 1 September 2014, and the position of chef was accepted as an approved nomination on 8 September.
However, Elena's subclass 457 visa application was refused last week. She brings you the decision record for your perusal. You discover the following:
1. DIAC found that Elena was not qualified as a chef, only as a kitchen hand. They based this finding on the translation of a certificate from the Tallinn Hospitality Trades College.
2. DIAC relied on a country report which stated that it is not difficult to obtain fraudulent documents from Estonian educational institutions. DIAC never put this information to Elena in processing her application.
Fortunately, Elena has kept a copy of her application, and her chef's certificate is indeed translated as "kitchen hand" by the (allegedly) NAATI-accredited translator. Elena is adamant that the Estonian phrase "kvalifitseeritud kokana", which appears on her trade certificate, translates as "qualified as a chef" and not "qualified as a kitchen hand".
A. Explain any review rights that Elena may have and timeframes that may be relevant.
B. Can the Tribunal consider a new translation of her college certificate, which was not before the original decision-maker, as part of its review of the DIAC decision?
C. What are Elena's prospects for a successful review of the refusal decision? Can the Tribunal simply grant her a visa if it decides that she meets all the criteria?
Explain and support your answers by referring to, and citing, relevant legislative provisions.
Question 3
GENERAL SCENARIO:
Harrison Lee migrated to Australia under a Business Innovation and Investment Program subclass 188 visa in the Business Innovation stream. Two years later, he was asked to do a Business Survey to see whether he had participated in any eligible business activities in Australia. As it turned out, Harrison had not been doing anything beyond roaming the premises of various casinos in Australia. DIBP sent to his Australian address, a Notice of Intention to Cancel his visa and invited him to provide a response within 28 days. However, as Harrison was travelling overseas at the time, he did not provide any response; whereupon DIBP then sent him a further notice in which they advised him that his subclass 188 visa was cancelled under s.134(1) of the Migration Act. Harrison Lee received both notices at the same time when he returned home. The Notice of Cancellation was dated 10 days ago.
QUESTION I
What visa, if any, would Harrison Lee be holding at this time? Why?
QUESTION II
To which review authority should Harrison Lee be lodging his appeal against the visa cancellation decision? What would be his visa status during the process of the review?
Harrison's son, Jet Lee, was included in the original visa application. When his father told him that the Notice of Cancellation also affected Jet, Jet did not seem particularly perturbed and said he is marrying Jennifer, his Australian girlfriend, as she has just told him that she is now pregnant and he will simply apply for a partner visa.
QUESTION III
(a) If Harrison Lee's business visa is cancelled, must the Minister also cancel Jet Lee's visa?
(b) Can Jet Lee apply for a Partner (Temporary) (Class UK) subclass 820 visa while his father's review application is in progress? What visa would Jet Lee hold at time of lodging his partner visa application?
(c) Would this visa continue throughout the processing of Jet's partner visa application? What might happen to Jet's visa status if Harrison's review application is resolved and Jet's partner visa application is still not finalised?
QUESTION IV
What (if any) bridging visa would an applicant hold in relation to a second Ministerial intervention application under s.417 of the Migration Act (1958); assuming the first Ministerial application under s.417 was refused?