University Name - LML6005: Visa Compliance and Cancellation Assignment

This assignment delves into the intricacies of Australian Migration Law, focusing on visa compliance and cancellation processes. It examines the rights of non-resident Australians, particularly concerning the Employer Nomination Scheme (subclass 186). The assignment analyzes scenarios where visa cancellation by the Department of Home Affairs (DHA) is considered, referencing Section 137Q of the Migration Act. It explores the requirements for a valid Notice of Intention to Consider Cancellation, including the necessary components and timelines for response. The document emphasizes the importance of fulfilling visa conditions, such as the work reference letter, and the consequences of non-compliance. It also addresses the process for obtaining extensions for responding to DHA notices. The content is supported by references to relevant Australian migration legislation and legal precedents.

Running head: LML 6005
LML 6005
Name of the Student:
Name of the University:
Authors Note:

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Contents
Answer 1:.........................................................................................................................................2
Answer 2:.........................................................................................................................................3
Answer 3:.........................................................................................................................................4
References:......................................................................................................................................6

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Answer 1:
Australian Migration Law regulates the rights of a non-resident Australian to enter and remain in
Australia. This law is applicable across the length and breadth of Australia in similar form
without any variation as it is a Commonwealth law. However, it is important to note that this
particular area of law is changes frequently hence, it is important to take the help of a Migration
agent to comply with the ever changing migration laws in the country.
Subclass 186, Employer Notification Scheme Visa, allows the skillful workers having being
nominated by their respective employers to stay and work in Australia on permanent basis.
Employer Notification Scheme Visa of subclass 186 is also referred to as direct entry stream as
the scheme allows skilled workers to live and work in Australia permanently. It is important to
note the following points as these are essential for the application of subclass 186 in respect to a
skillful worker.
Nomination by an Australian employer: The skillful worker must be nominated by an Australian
employer in order to be eligible to live and work in the country permanently as per subclass 186.
Occupation must be listed in the relevant list of skilled occupations eligible for direct entry
stream under subclass 186: The skillful worker applying for visa under direct entry stream must
be an occupant of a relevant skilled occupation as listed in the eligible list of skilled occupations.
Importance of competency in English: The worker applying for the visa under the scheme must
be competent in English to be eligible to get the visa.
In this case though not all details relating to Marcus Boone have been provided here however, it
is assumed that all the above conditions have been fulfilled by him and hence, he got the visa

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under the subclass 186. Now, considering his current situation let us assess whether there is any
risk of cancellation of Marcus’s current visa by Department of Home Affairs.
The Department of Home Affairs of Australia has the right to cancel the granted regional visas
under section 137Q of Australian Migration Law. According to this section there are two specific
situations where the visas can be cancelled by the Department of Home Affairs; firstly, in case
the visa holder fails to commence the nominated employment within 6 months from the date of
granting visa. Secondly, if the employment of the visa holder has been terminated within 2 years
from the date of commencement of the employment.
Since, the work reference letter has not been demonstrated by Marcus hence, the Department of
Home Affairs have the right to cancel the current visa of his as he has failed to complete the
work reference letter which is an essential requirement for the work visa. The current visa has
only been obtained by Marcus after getting the visa under subclass 186 since, the work reference
letter has not been completed by him hence, the Department of Home Affairs have the right to
cancel his current visa.
Answer 2:
Department of Home Affairs (DHA) has the right to send Notice of Intention to Consider
Cancellation to visa holders asking them to comment on the information collected about the visa
holders. The visa holders will have to explain the reasons to not cancel the visa to DHA within a
reasonable time. The reasons explained by the visa holders after serving the notice of intention to
consider cancellation shall be examined by the decision makers to decide whether the visa are to
be cancelled or not. The person served with such notice has 28 days to explain the reasons in
support of not cancelling the visa. However, the time limit of 28 days to respond to the Notice of

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Intention to Consider Cancellation is subjected to extension provided DHA allows such
extension on the application of the concerned person / persons1. The concerned person must
apply for an extension of time to respond properly to the DHA and if the DHA considers that the
extension asked is justified and there is appropriate reason then it can give such extension to the
concerned person2.
In this case Marcus has been served with the Notice of Intention to Consider Cancellation by the
DHA and hence, he must respond to the notice including answering the questions asked by the
DHA in such notice, if any within a period of 28 days from the date of serving the notice to him.
Yes, it is possible obtain an extension provided Marcus apply for the same to the DHA and
provide appropriate reasons for such extension.
Answer 3:
A valid Notice of Intention to Consider Cancellation by the DHA must have the following
characteristics. Exclusion of one or more of the following will lead to invalidity to the Notice.
Notice must be served by the DHA:
Only DHA has the right to serve such notice thus, no other department has the right or authority
to serve such notice. Hence, DHA must serve such notice in order to be valid.
Notice must be served to the registered address of the visa holder:
1 Sev A. Ozdowski, "The Law, Immigration And Human Rights: Changing The Australian Immigration
Control System" (2018) 21(5) International Migration Review.
2 Rodger G Fernandez et al, Australian Migration Legislation Collection, January 2020 (1st ed,
2020).

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The notice of Intention to Consider Cancellation must be served to registered address of the visa
holder as per the records of the DHA. Thus, in case the notice is not properly addressed the
validity of the notice can be challenged.
Notice must be served to the visa holder:
The notice must be served to the visa holder hence, in case the visa holder is not present in the
country then it will not be appropriate to send such notice to his address3.
Notice must contain the reasons:
DHA must provide the reasons for serving such notice, i.e. what are the reasons that compels
DHA to contemplate cancelling the visa of the concerned person. The concerned person on the
basis of such notice will prepare his response hence, all the reasons must be mentioned in the
notice to allow the visa holder to give his / her reply on such notice properly.
Appropriate time to give response:
The person on whom such notice has been served must be given appropriate time to respond to
such notice. Generally 28 days is the time period from the date of serving of notice that is
allowed to the visa holder to respond to the notice of DHA4.
3 Matthew T Stubbs, "Arbitrary Detention In Australia: Detention Of Unlawful Non-Citizens Under The
Migration Act 1958 (Cth)" (2017) 27(4) Australian Year Book of International Law.
4 RODGER ET AL FERNANDEZ, AUSTRALIAN MIGRATION LEGISLATION COLLECTION,
JANUARY 2020 (LEXISNEXIS AUSTRALIA, 7th ed, 2020).

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References:
FERNANDEZ, RODGER ET AL, AUSTRALIAN MIGRATION LEGISLATION COLLECTION,
JANUARY 2020 (LEXISNEXIS AUSTRALIA, 7th ed, 2020)
Fernandez, Rodger G et al, Australian Migration Legislation Collection, January 2020 (1st ed,
2020)
Ozdowski, Sev A., "The Law, Immigration And Human Rights: Changing The Australian
Immigration Control System" (2018) 21(5) International Migration Review
Stubbs, Matthew T, "Arbitrary Detention In Australia: Detention Of Unlawful Non-Citizens
Under The Migration Act 1958 (Cth)" (2017) 27(4) Australian Year Book of International Law