Case Study: Visa Cancellation under Australian Migration Act 1958

This case study examines several scenarios related to Narelle Patel's visa issues under Australian Immigration Law, specifically focusing on the Migration Act 1958. The first scenario addresses the cancellation of Patel's Visitor Visa (Class FA) subclass 600 due to a breach of condition 8201, which prohibits employment in Australia. It identifies Section 116 of the Migration Act as the basis for visa cancellation and outlines the appeal process. The second scenario determines that Patel would need to apply for a Bridging E class visa to remain lawfully in Australia while applying for a Partner Visa (Class UK/BS). This visa would be subject to conditions 8101 and 8564, restricting employment and criminal activities. The third scenario clarifies that Patel does not need to apply for another bridging visa as she already holds a Bridging E visa, allowing her to apply for a Partner visa (subclass 820). The final scenario confirms that Patel would continue to hold a Bridging E class visa during the processing of these transactions. The study references relevant sections of the Migration Act 1958, Migration Regulations 1994, and case law, such as Waensila v Minister for Immigration and Border Protection, to support its analysis.

Running head: IMMIGRATION LAW
IMMIGRATION LAW
Name of the Student
Name of the University
Author Note

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Scenario (a)
Issue
Narelle Patel arrived at Australia with a Visitor Visa (Class FA) subclass 600 with
conditions (8101 and 8201). She was in breach of one of the conditions and thus was liable to
have her visa cancelled. The issue here is to determine the cancellation power used by the
Department of Migration to cancel her visa.
Rule
The Migration Act, 1958 defines and regulates all forms of migration within the
jurisdiction of the Australian Commonwealth. This thus means that this act is the regulatory
statute for grant of visas in the Australian Commonwealth. A visa that has a condition attached to
it would need the person with the visa to adequately observe the condition. Condition 8201
attached to visas of subclass 600 says that the individual getting the visa would not be allowed to
be employed in Australia during their stay. The power to cancel visas in obtained from Section
116 of the Migration Act, 19581. Section 116 (3) provided for the power to cancel visas based on
a breach of conditions. In such a case the Department of Migration would issue a Notice of
Cancellation and the person with the visa would have 9 days to appeal before the Administrative
Appeals Tribunal (AAT).
1 Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-266.

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Application
In this case the Department of Migration would be able to cancel Narelle Patel’s visa on
the basis of the cancellation power conferred under Section 116 of the Migration Act, 1958
through the process discussed above.
Conclusion
Narelle Patel’s would be cancelled through the cancellation power prescribed under the
act.
Scenario (b)
Issue
The issue here is to determine the kind of bridging visa Narelle Patel would have to apply
for if she wishes to apply for a Partner Visa (Class UK/BS).
Rule
A bridging E class visa is granted for visa cancellations under Section 116 of the
Migration Act, 19582. This allows the person to lawfully remain within the jurisdiction of
Australia while applying for another visa or while an appeal to such a visa is under adjudication3.
Application
Narelle Patel would be granted a Bridging E class visa since her visa had been cancelled
by legislative powers conferred under Section 116 of the Migration Act, 1958. Such a visa would
2 Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers and working holiday
makers in Australia." Journal of Ethnic and Migration Studies 40.12 (2014): 1915-1933.
3 Phillips, Janet, and Harriet Spinks. "Immigration detention in Australia." Parliamentary Library 20 (2013): 1-8.

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have the conditions 8101 and 8564 attached to it. These prescribe a condition to not be employed
and not to engage in criminal activities.
Conclusion
Narelle Patel would have to seek a Bridging E class visa. This would have a condition to
not enter into employment during her stay and not engage in criminal activities.
Scenario (c)
Issue
The issue here is if Narelle Patel would have to apply for another bridging visa and if so
what visa she would hold now and if she can make an application for a Partner visa can be made.
Rule
As seen in the above section Narelle Patel has been granted a Bridging E visa. As
envisaged by Section 74 of the Migration Act, 1958 in case of individuals holding a bridging
visa the individual would not be required to apply for a further bridging visa. A defacto partner is
defined under Section 5CB of the Migration Act, 19584. These partners can be granted visas
based on their sponsorships. However there is a limitation to the sponsorship as stated by
regulation 1.20J of the Migration Regulations, 1994 as held by Waensila v Minister for
Immigration and Border Protection5.
4 McAdam, Jane. "Australia and asylum seekers." (2013): 435-448.
5 [2016] FCAFC 32.

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Application
Narelle Patel would not have to apply for a further bridging visa as she already holds a
Bridging E class visa as prescribed under the provisions of Section 74 of the Migration Act,
1958. Thus Narelle Patel would be able to apply for Partner visa (subclass 820).
Conclusion
Narelle Patel would not have to apply for another bridging visa as she is already the
holder of a Bridging E class visa. She would also be entitled to apply for Partner visa (subclass
820).
Scenario (d)
Issue
The issue here is to determine the visa Narelle Patel would be holding during these
transactions.
Rule
A bridging E class visa allows a person to reside inside the country for 28 days till a
cancellation is adjudged or if an appeal is yet to be disposed6.
Application
Narelle Patel was granted a Bridging E class visa and thus would hold this visa during the
disposal of the above stated transactions.
6 Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in Australia:
introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.

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Conclusion
The visa being held by Narelle Patel during these transactions is a Bridging E class visa.

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Bibliography
Statutes
Migration Act, 1958
Migration Regulations, 1994
Case law
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
Articles
Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in
Australia: introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.
McAdam, Jane. "Australia and asylum seekers." (2013): 435-448.
Phillips, Janet, and Harriet Spinks. "Immigration detention in Australia." Parliamentary
Library 20 (2013): 1-8.
Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers
and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40.12
(2014): 1915-1933.
Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-
266.

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