Migration Act Sec 351: Subclass 500 Visa Case Study & Analysis

This case study examines a complex situation involving a Subclass 500 (Student) visa application in Australia, focusing on the application of Section 351 of the Migration Act. The client, Jordan, initially entered Australia on a student visa to study music but faced enrolment cancellation due to academic performance issues exacerbated by his successful music career. After re-enrolling in a different program, his subsequent visa application was denied, leading to an appeal. The case study delves into the Minister's powers under Section 351 to substitute tribunal decisions in the public interest, considering ministerial guidelines and relevant factors such as the applicant's visa status and family circumstances. The request urges the Minister to intervene, set aside the tribunal's decision, and grant Jordan the Subclass 500 visa, highlighting the potential for anxiety and depression affecting the client and his family.

Assessment
Professional Task

TASK
ABC Block,
XYZ Office,
Minister of Australia.
Respected Sir,
I am writing this letter as a Migration agent on the behalf of my client Jordan for setting aside his
Tribunal decision by substituting it with grant of Subclass 500 (Student) visa. Considering the
following statement, I would like to give you some details about my client which are as follows:
 Jordan arrived in Australia on 19 January 2018 on a Subclass 500 (Student) visa with the
purpose of studying Bachelor of Music at Western Sydney University, which is to be
concluded in January 2021.
 The music career of Jordan took off by huge success of his songs with his band of three
Australian citizens who were considered as Non-Jordans in consecutive years of 2018,
2019, 2020 and 2021 by chartering in top 10 of ARIA Albums Chart.
 Due to his musical success and exhausting tour schedule, he was not able to attend
numerous classes at WSU but submitted all assessments which were considered of low
quality by university.
 After failing in three subjects with bad performance in the class, he was require to appear
before the university in December 2020 for justifying his continuation in the course of
Bachelor of Music and was not able to respond to university request due to his extended
tour of the Northern Territory which had limited internet access 1. The university after
giving various opportunities finally cancelled his enrolment in January 2021, which was
shortly before his original schedule of being graduate.
 The cancellation of his enrolment in university led him to re-enrolment in a two year
Certificate 4 in Music at Christopher's College of Music, which was a private tertiary
institution in Newtown. He further made an application for another Subclass 500
(Student) visa on basis of his enrolment in February 2021 for which he was granted a
bridging visa as being second Student visa to consistently remain in Australian
community.
1 "“DABUS”" (2022) 53(4)

 The department of Music at Christopher College, was not notified about his cancellation
of enrolment due to technical glitch and that his original Student visa has expired in
March, 2021.
 Following the above situation in June 2021, Jordan's Student visa application was denied
or refused by a Delegate of the Minister as he was not satisfied with his entry and stay as
a student being genuine applicant and also do not justify cl 500.212 of Schedule 2 of
Migration regulations. Jordan appealed for Delegate's decision to be reviewed by the
Appeal Tribunal2.
Considering the above matter, I request you to solve it with your authority and power mentioned
in Sec 351 of Migration Act and Minister's guidelines on ministerial powers with Section 351,
417 and 501J for setting aside tribunal decision and granting Jordan the Subclass 500 (Student)
visa.
Migration Act – Sec 351 :
1. The decision of Tribunal may be substituted by the Minister, if he thinks so in
consideration with public interest.
2. The Minister is not bound to exercise his powers and is neither bound by any other
provisions of the act.
3. The Minister solely or personally has the authority to exercise such power.
4. The Minister has to state reasonable reasons or give reasonable statement before the
house of Parliament, if he substitutes a decision stating that :
(a) the decision of the Tribunal is to be set aside.
(b) the decision is to be substituted or set aside by the Minister.
(c) to state specific or reasonable reasons for substituting his decision in interest of public.
5. It does not include the following things :
(a) the identity of the person who is applying for relief, or
(b) it is on the desire of the concerned authority to publish or not the name of the applicant in
public interest.
6. Such statement is to be made within 15 days of sitting before the house of Parliament
stating that :
2 "“Vorwerk”" (2021) 52(7)

(a) the decision will be understood to be undertaken in July, if it is taken between January and
June.
(b) the decision will be understood to be undertaken in January, if it is taken between July and
December.
7. The concerned authority as the Minister is not bound to exercise his power, or in other
words he can only be requested by to consider the matter by applicant .
Ministerial guidelines under sections 351, 417 and 501 J of Migration Act 1958 :
The Minister's guidelines describes various types of cases in relation to rumination. These
guidelines describes many matters that are not suitable to be considered by the respective
authority. There are many situations or events where it is expected to finalise such requests
without further processing3. This includes circumstance of a case where :
Visa status is important
If a person is expected to remain engaged with Australian Government Department of Home
Affairs, being in Australia, that it is expected from a person to make his preparations in case of
departure, although he has applied for his decision consideration. A person is expected by the
Minister to hold a current visa during the processing of his immigration detention. The request
from unlawful non-citizens is not considered by the Minister. If an unlawful citizen is in
community then his request would be finalised without any further processing. This basically
means that a person should have a valid visa for his request to be considered by the respective
authority. If there are any questions about a person's immigration request, or have received a
letter for knowing about immigration status then he or she should contact the concerned
department immediately.
I request you to look into the matter with keen attention and give justice to my client as he is
suffering from anxiety and depression.
I am also aware that you have a lot on your plate being a responsible authority but it would be
very grateful and kind of you to consider the matter of my client Jordan as he is married with a
child and has family to look after and also takes care of his ill child by extending his stay in
Australia and granting him Subclass 500 (Student) visa for the same4.
3 Agarwal, Sumit, "Public And Private Information: Firm Disclosure, SEC Letters, And
The JOBS Act" [2016] SSRN Electronic Journal
4 Guzik, Samuel S, "SEC Crowdfunding Rulemaking Under The Jobs Act -- An
Opportunity Lost?" [2014] SSRN Electronic Journal

Yours sincerely,
XYZ.

REFERENCES
Books and Journals
"“DABUS”" (2022) 53(4)
"“Vorwerk”" (2021) 52(7)
Agarwal, Sumit, "Public And Private Information: Firm Disclosure, SEC Letters, And The JOBS
Act" [2016] SSRN Electronic Journal
Guzik, Samuel S, "SEC Crowdfunding Rulemaking Under The Jobs Act -- An Opportunity
Lost?" [2014] SSRN Electronic Journal