Stanley Harp and Violation of Visa Condition 8101
1). Issue
Whether Stanley has violated the provisions imposed on him via the condition 8101 under schedule 8 of the Migration Regulations 1994 (Cth)
Rule
Under the schedule 8 of the Migration Regulations 1994 it is provided that the person on whom the condition has been imposed is not allowed to work in Australia till the condition is applicable.
Work as per reg 1.03 is any activity through which remunerations is generally derived. There are a few activities which can be engaged without the violation of condition 8101 and a few situations where the department of immigration s likely to be flexible. These are below
Volunteer work is provided under reg 2.57(5) – A person indulging in volunteer work while in Australia is excluded from the breach of condition 8101 of the MR if the work is for community benefit, is for a non profit organization, would have not been provided as a paid work to Australian resident, the work is unpaid and is less than for a period of three months.
However work condition is not considered acceptable for tourist visa holders.
Application
In the given situation it has been provided that Stanley is on a visitor’s visa which has a condition 8101 imposed on it. This means that he cannot work in Australia. However has commenced work which is unpaid in nature and the organization which he is working for is a non profit organization which operates on a commercial basis. Here the work he is doing is in the benefit of the community, any Australian resident would not have been paid for it and the organization is non profit. However he is doing the internship of work experience which is not acceptable. Thus his internship will violate condition 8101.
Conclusion
Condition 8101 is violated by Stanley
2). Issue
Whether Ivan would be eligible to make an application for a Medical Visa where her visa has been cancelled under section 109 of the Migration Act 1958
Rule
It has been provided through the provisions of section 48 of the MA if a person does not hold a substantive visa he or she will not be allowed to make an application for a further substantive visa of under subsection 48(2) if the visa had been cancelled under section 109 of the MA. However there are certain exceptions in relation to section 48 of the MA and certain visa can be applied even where visa has been cancelled under section 109 of the MA.
Ivan Tam’s Eligibility for Medical Visa After Cancellation of Student Visa
It has been provided through MR reg 2.12(3) that there are certain visas which can be applied in relation to exceptions of section 48 of the Act. These include Medical Treatment (Visitor) visa.
Application
In the given situation the visa held by Ivan have been cancelled under the provisions of section 109 of the MA. This means that she would not be able to make an application for any visa under section 48 of the MA unless the exceptions under MR reg 2.12(3) are applicable. Under the exceptions it is provided that a person is allowed to make a application of Medical Visa. Thus she can apply for a medical visa.
Conclusion
Ivan can apply for a medical visa
3). Issue
The issue is to advice Kevin Steam with respect to his student visa application while he is on a visitor visa provided under the sponsored family stream.
Rule
There are certain conditions which are imposed on a visitor visa. One of the conditions is that of no further stay. This condition is provided through the provisions of schedule 8 of the Migration Regulations 1994 and is known as condition 8503. This condition means that on any person to whom the condition 8503 is applicable is not allowed to stay in Australia beyond the validity of the visa held by them.
In addition under a visitor visa which has been provided under the Sponsored Family stream makes the Australian citizen or permanent resident responsible for the compliance of their relatives or friends with the immigration requirements as per Sch 2, cl 600.232(3) and (4) of the MA.
Application
It has been provided through the case study that Kevin is holding a visitors visa and this visa has a condition 8503 imposed on it. This means that he is not allowed to stay in Australia beyond the validity of the visa held by him. He is also not allowed to make an application for a new visa unless the condition is waived under section 501 of the MA where the minister finds compelling and compassionate circumstances to have arose after the visa is granted. Thus he cannot apply for a student visa. In addition under Sponsored Family stream the Australian citizen or permanent resident responsible for the compliance of their relatives or friends with the immigration requirements.
Conclusion
Thus it is advised to Kevin to not make an application which would breach Condition 8503
Immigration Advice for Kevin Steam’s Student Visa Application
4).
Issue
There are two issue which have been identified in the given situation
- Conclusion of the decision of minister before 21 November 2017 in relation to Johns sponsorship application
- Does the previous sponsorship of Molob by John pose a problem to the recent sponsorship application.
Rule
Under sch 2 category one it is provided that a person can make a Australian sponsorship if they had been in Australia for a period of two years before the sponsoring visa application is made.
Under Sch 2 cl 820.211(2) an applicant has to be a spouse of a de facto partner of an Australian citizen. The immigration status of a sponsor has to be taken into consideration under schedule 2 reg 1.03, Migration Regulations 1994 (Cth). The person has to be an Australian citizen, permanent resident or an eligible New Zealand citizen.
Other than the immigration status the Australian citizen has to be settled as under regulation 1.03. At the time when the decision is made there are three categories in which the settled requirements can be met by the sponsor
The second category provides that if the sponsor is outside Australia or have been out for a four months period within two years before the visa application is made, some documentary evidence depicting that they are settled in Australia currently have to be provided. In relation to the third category where the sponsor has not been in Australia for a period of two years they have to provide reasons for their absence and proof that they meet the settled definition.
A person can be a sponsor of another partner only if five years have expired after a sponsorship has been made.
Application
As John has been outside Australia the sponsorship application will not be valid. This is because under category one a person can only be a sponsor if they had been in Australia two years prior to making the sponsorship application. However the application would have been approved of a valid proof under category three is provided by John if the decision is made before 21 November 2017.
For the second issue as five years gave expired after John sponsored Molob he is eligible to sponsor Elfriede
Conclusion
In the first issue John needs to provide evidence of settlement
In the second issue he is eligible for being a sponsor
5). Issue
The issue in the case is that whether the visa of Ace Veka has been lawfully cancelled or not
Rule
It has been provided via the provisions of section 116 (g)(1) of the MA that a minister can cancel a visa based on grounds for visa cancellation.
The Grounds for cancellation of visa are provided under the provisions of Reg 2.43 of the MR as per section 116 of the MA
The visa can be cancelled under the provisions of Reg 2.43 (p) if it is a temporary visa and the holder has committed an offence against the commonwealth or state or territory law and has been charged with changed with such offence.
Application
It has been stated through the provisions of the case study that the visa of Ace Veka has been cancelled by the minister as he has been charged with assault. Through the application of section 116(g)(1) and reg 2.43 (p) it can be stated that the minister has the legal right to cancel the visa of Ace Veka.
Conclusion
The visa has been lawfully cancelled
6). Issue
Whether Marissa has to notify the Department of Home Affairs about the change in her health conditions
Rule
It has been provided through the provisions of section 104 of the MA that change in circumstances are to be notified. The section states that if there are changes in circumstances which makes an answer to a question in the visa under incorrect the person may as soon as practicable inform about the new circumstances to the officer.
Application
In the given situation the visa application form asks for health conditions. Thus as there is a change in health condition it is the duty of Marissa to notify the officer as this would make the answer provided by her in the application form incorrect.
Conclusion
The circumstances have to be notified
Reference:
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
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