Letter of Advice: Australian Immigration Law and Visa Issues for Onah

This report is a letter of advice concerning Australian immigration law, specifically addressing the visa status of Onah. It explores the potential consequences of her husband's visa cancellation on her own bridging visa and partner visa application, referencing the Migration Act 1958 and relevant sections regarding consequential cancellation. The report outlines options available to Onah, including appealing to the Administrative Appeals Tribunal and applying for a temporary or permanent partner visa. Furthermore, it analyzes Onah's eligibility for a skilled independent visa (subclass 189), considering her pharmacy qualifications and the requirements for the points test. The report also addresses the legal implications of an employer's request for unpaid work in exchange for visa sponsorship, citing relevant sections of the Migration Act regarding benefits and penalties. The advice is based on the information and legislation available at the time of writing.

Australian Immigration Law

Letter of Advice
To,
Onah
78/156 Kent Avenue,
Springvale South
Australia
Sub: addressing issues relating to visa status
Issue relating to impact on your visa in case husband’s protection visa is cancelled
In accordance with section 37 of Migration Act 1958, bridging visa is temporary visa which
are granted under subdivision AF to give temporary safe haven in Australia1. In accordance
with provision of migration act where cancellation of an individual visa might lead to
cancellation of family member’s visa and same is referred as consequent cancellation2. It
allows an individual to stay in Australia till the time immigration status of applicant is
resolved.
In present case, as Onah has applied for Partner (820/801) visa and was granted a Bridging A
(1010) visa. However, as letter has been received that as per new Ministerial Direction,
application of families who belong to Australia as IMA will be processed at lowest priority
or after assessment of all existing visa application. The situation in present case relates to
grounds prescribes in section 116 which asserts reason of cancellation. It comprises bridging
visa holders under investigation. As Onah has received notice because she is wife of IMA,
which will be considered at lowest priority as per new Ministerial Direction, the cancellation
will be addressed under section 116. It can be stated that cancellation of Onah visa is
discretionary consequential cancellation as per section 140 (2), as partner visa was applied on
1 Migration Act 1949
2 Consequential Cancellation: If Your Family Member’s Visa Is Cancelled, Your Visa May
Too Be At Risk. (6th October 2019). Australian Immigration Law Services.
<https://www.australiavisa.com/immigration-news/if-your-family-members-visa-is-
cancelled-your-visa-may-too-be-at-risk/>

the basis of visa of his husband Hamdan which is not valid now. However the decision of
Directory of home affairs will be affected by following factors:
 Assessment of the degree of hardship which might be caused to visa holder and their
family member has to assess due to consequential cancellation.
The purpose of visa holder to stay in Australia
 Past and present behaviour of visa holder.
 Other relevant matters.
In present it can be concluded that Oanh partner visa will be cancelled in case her
husband protection visa is cancelled as per provision of consequential cancellation. The
option available with Onah is to file request to review the decision at Administrative
Appeals Tribunal. In order to get positive result application should be made along with
appropriate reason so that the applied request in accepted.
Due to change in visa status of Hamdan as per change in provision as per Ministerial
Direction, Onah will be eligible for 820/801 partner visa as it will be granted only in case:
 Your partner is an Australian citizen, permanent resident.
 The applicant is inside Australia at the time of application.
 Applicant is married and can prove that he or she has lived together for twelve
months3.
Thus, Onah is in Australia while making application, thus she can apply for 802
temporary visa and requisite to the higher authority that she was not aware about the visa
status of her husband and other reasons that they should accept visa application.
Application of permanent visa with sponsorship
A permanent visa entitles immigrant to live in Australia forever. Australia skilled
nominated visa subclass 190 which is a pond based visa for workers who wanted to settle
in Australia on a permanent basis. However, in order to apply for visa it is necessary to
get nomination for sponsorship from Australian state/territory, to apply for visa subclass
3 Subclass 820 / 801 Partner Visa (6th October 2019). <https://truebluemigration.com/visa-
types/partner-visa/820-801-defacto-spouse-visa/>

1904. The most important variant to be assessed for being eligible for independent visa
189 is to check whether your occupation is listed on medium and long term skilled list.
The specified list comprises that occupation which is having significant demand in
Australia and can be fulfilled only by skilled workers in order to decrease the labour gap.
5Further, it is necessary that an adequate proof or evidence should be available in order to
prove that the individual comprises required set of skills as well as qualification for
occupation. Further, the second step to check whether the applicant is able to meet
minimum Australia point test of 65 points for proceeding further for 189. The
specifications are provided relating to age, educational qualification, work experience,
skills, language requirements and other factors. Further, applicant is required to submit
regular documents as well as IELTS test report and skill assessment report. In present
case of Onah as it is clearly specified that course of Pharmacy for which she is eligible is
off the list due to which primary requirement for applying visa is not fulfilled. Thus, she
is not eligible to apply for permanent visa 189.
In case pharmacy asks Oanh for working for six months with no pay in return of
sponsoring visa
Offences have been defined in Subdivision D of Migration Act 1949 in which section
245A Q asserts that any payment or other valuable consideration; deduction of amount;
an advantage, a service or attainment of real property will be considered as benefit.
Further, as per provision of section 245AR it is prohibited to ask for or accepting a
benefit in return of existence of a sponsorship –related event. It will be deemed that a
person has contravened specified section if an individual (employer) asks or receives any
benefit from another person. Subsection (3) of section 245 AR specifies that no
contravention will be assumed in case the benefit is payment of a reasonable amount for
4 Australia Permanent Residency Visa (6th October 2019). Australia Immigration <
https://www.aptechvisa.com/australia-immigration/australia-permanent-Residency-Visa>
5 Australia Skilled Independent Visa 189. (6th October 2019). Australia Immigration.
<https://www.aptechvisa.com/australia-immigration/australia-skilled-independent-visa-
subclass-189>

professional service to be paid by employer or a third person6. In any case if the offence is
committed than it has been provided in section 245 AR (3) that a penalty of 360 penalty
units or imprisonment of 2 year or both will be applied to the victim. Even civil penalty of
240 penalty units is applied in case the stated provisions are contravened7. Thus, in case
Mildura states condition to Oanh to work for six month at no pay in turn for sponsoring
her visa, it will lead to contravention of provisions as per section 245 AR of migration act
1949. As working for six months for no consideration is a kind of advantage and same is
provided as benefit in section 245 AQ of the act. Further penal provision as per section
245 AR (4) will also be applied to Mildura, according to which penalty of 360 penalty
units will be paid or would be held for imprisonment for a period of two years. Even civil
penalty of 240 penalty units could be applied for the offence committed.
Thanks.
Date: 6th October 2019
6 Migration Regulations 1994
7 Migration Act 1949

Bibliography
Consequential Cancellation: If Your Family Member’s Visa Is Cancelled, Your Visa May Too
Be At Risk. (6th October 2019). Australian Immigration Law Services.
<https://www.australiavisa.com/immigration-news/if-your-family-members-visa-is-
cancelled-your-visa-may-too-be-at-risk/>
Australia Permanent Residency Visa (6th October 2019). Australia Immigration <
https://www.aptechvisa.com/australia-immigration/australia-permanent-Residency-Visa>
Australia Skilled Independent Visa 189. (6th October 2019). Australia Immigration.
<https://www.aptechvisa.com/australia-immigration/australia-skilled-independent-visa-
subclass-189>
Subclass 820 / 801 Partner Visa (6th October 2019). <https://truebluemigration.com/visa-
types/partner-visa/820-801-defacto-spouse-visa/>
Legislation
Migration Act 1949
Migration Regulations 1994