Migration Act Case Study: Analyzing Visa Condition 8101 Breach

This case study provides an analysis of a scenario involving Ivan Nguyen, a holder of a Bridging Visa E subject to condition 8101, which prohibits him from working in Australia. The analysis focuses on whether Ivan, his lawyer Sunny Ming, and Sunny's business partner Dusty Dee have violated the Migration Act 1958 (Cth) by Ivan working at their restaurant in exchange for waived legal fees. The solution discusses the relevant sections of the Act, including Section 235 concerning working without permission, and Sections 245AA to 245AK, which address the liabilities of those who allow unlawful non-citizens or visa holders with work restrictions to engage in work activities. It concludes that Ivan has violated Section 235(1) and that Sunny Ming and Dusty Dee have violated sections 245AC and 245AD by allowing Ivan to work and exploiting him, potentially leading to fines and imprisonment.

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Question 1
The Migration Act 1958 (cth) (the Act) provides provisions which deal with the liabilities
of a person who has violated visa conditions imposed on the visa held by him on her. The
legislation sets out both criminal as well as civil penalties in relation to the violation of a
condition made by a person. In the same way where a person has been imposed with the
condition 8101 on his or her visa he is not allowed to work in Australia and if such person
indulges in work it constitutes a criminal offence under the Act.
The primary section which governs the rules in relation to working without permission in
Australia is Section 235 of the Act. The section expressly states that where a person holds a
temporary visa in Australia and such visa has been imposed with a condition which restricts the
right of such person to work within Australia while holding such visa the person contravenes the
section if he or she indulges into work Activities within the country. This Action would
constitute an offence under section 235 as stated by subsection 235(1)1. In addition it has been
provided that the condition can restrict the person to indulge into any kind of work Activity or a
specified work Activity or a work Activity other then what has been specified. This provision has
been provided to subsection 235 (2)2.
It has also been provided that an unlawful non-citizen who gets into a work Activity in
Australia to gain remuneration or anything else as a reward is also liable to be prosecuted under
section 235(3)3. A fine which may extend up to 100 units is imposed upon a person who has been
found to violate the provision stated through subsection 235(1). In addition the violation of the
1 Migration Act 1958 (Cth) at section 235(1)
2 Migration Act 1958 (Cth) at section 235(2)
3 Migration Act 1958 (Cth) at section 235(3)
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sections result in a strict liability offence with respect to the Criminal Code 6.1 as provided
through subsection 235(4) (b). A person who has been accused of violating this section can avail
specific defences which have been set out through subsection 235 (6) and (7) of the Act4. These
provisions protect such person from carrying out work which has been approved by the Minister.
Through section 235 it has been made clear that a criminal offence is constituted when a
person indulges into any work Activity or a specific work Activity or a work Activity other than
what has been specified under the condition. The construction of the word “work” is subjected to
a very wide range of interpretation. According to the Act an Activity through which
remuneration can be obtained carried out in Australia constitutes “work”. Any Activity which
attracts a reward of any nature also constitutes “work”. In the case study it has been stated that
Ivan is a holder of a Bridging E visa which comes with an imposed condition 8101. The
condition restricts Ivan from indulging into any form of work Activity in Australia.
It has been provided by the case study that in order to be able to continue his legal battle
in relation to a protection visa he has been forced to work in a restaurant which is partially
owned by his lawyer. He is providing cleaning services in the restaurant and in return although
he is not paid any money, the lawyer has promised him not to charge him legal fees in relation to
the lawsuit. However through the application of the rules provided through section 235 it can be
stated that as he is a lawful non-citizen and has been imposed with a condition not to work in
Australia, he has violated section 235(1) by indulging in to work Activities. In the given situation
through the application of section 235(5)5 he is liable to pay a fine which may extend up to
$10,000. In addition he is also liable for a strict liability offence under the criminal code section
4 Migration Act 1958 (Cth) at section 235(6) & (7)
5 Migration Act 1958 (Cth) at section 235(5)
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6.16. These are only the criminal implications which he will be subjected to other than the civil
penalties such as visa cancellation.
Question 2
Provisions have also been provided through the Act towards those who provide
opportunities to unlawful non-citizens to work in Australia or to those lawful non citizens who
have been imposed with restrictions of not working while staying in Australia. Any person who
provides an opportunity to the above discussed lawful or unlawful non-citizens to indulge in
work related activities in Australia is regarded to have committed a criminal offence under the
Act. These liabilities are not only limited to persons who allow the above discussed persons to
work in Australia but also to those persons who referred such persons for working in Australia.
Section 245AA to section 245AK set out rules which govern the position and liability of those
who allow the above discussed citizens to indulge in work activities in Australia. In this
question the liability of dash Sunny Ming and Dusty Dee for allowing Ivan to work in their
restaurant is to be determined.
It has been provided in the case study that Ivan is working for a restaurant which is
partially owned by Sunny Ming and Dusty Dee.The provisions of the above discuss sections
have to be applied in this situation in order to determine the criminal implications. An overview
with respect to these liabilities is provided by section 254AA7. Penalties are imposed and
offences are created through the application of this section. The section is applicable in
circumstances where it is identified that a person has allowed or referred and lawful or unlawful
non-citizen to work against the conditions imposed on his or her visa. Section 13 of the Act
6 Criminal code 1935 at section 6.1
7 Migration Act 1958 (Cth) at section 245AA
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provides the meaning of a lawful non citizen8. In addition section 245 AG of the Act defines
work and allows to work.
It has been provided in the case study that Ivan holds a Bridging E visa and therefore he
would be considered as a lawful non citizen with respect to the meaning provided under section
13 of the Act. Section 245AC of the Act deal with rules with respect to the allowance of a lawful
non-citizen towards working in the country against the conditions imposed on his or her visa9.
Where are lawful non-citizens has been allowed to work by a person or has not been stopped
from working it will constitute a breach of this section by the person. There are certain defence
which a person can take against and allegation with respect to sub section 245 AC(2)10. This
section provides that where reasonable steps have been taken by services towards the verification
of work rights of the lawful non citizen the provisions of section 245AC(1) would not be
applicable.These verification have to be done under the rules provided through the Migration
Regulation 1994 (Cth)11.
Under section 245AC (3) an imprisonment of 2 years can be imposed upon those who
have made a violation in relation to subsection (1)12. The element of fault as provided with
respect to subsection 1(a)(b)(c) and (d) when the person is reckless is acknowledged. The Civil
penalty provisions are also involved in case violation of subsection (1) is identified and the
wrongdoer is imposed with a pecuniary penalty of 90 penalty units. The person’s state of mind is
not taken into consideration as per section 486 ZF of the Act13.
8 Migration Act 1958 (Cth) at section 13
9 Migration Act 1958 (Cth) at section 245AC(1)
10 Migration Act 1958 (Cth) at section 245AC(2)
11Migration Regulation 1994 (Cth)
12 Migration Act 1958 (Cth) at section 245AC(3)
13 Migration Act 1958 (Cth) at section 486ZF
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As provided under section 245AD of the Act a person is said to have aggravated the
offence of providing work to a lawful non-citizen imposed with condition 8101 when such
person continues to allow or have allowed the worker to continue the work14. A person is said to
have allowed or continue to allowed a lawful non-citizen to work when the lawful non citizen is
holding a visa which is imposed with the condition of not working and with the knowledge of
such condition he has not stopped the person from working and further have recklessly exploited
the worker to personal advantage. Such a person can be imprisoned for a period of up to 5 years
under subsection 245AD (2)15.
Section 245AH defines “work” as an Activity which is conducted to gain a reward or
otherwise16. The word “allows to work” is satisfied when a worker is appointed through a
contract of service or where there is an arrangement between the person and the worker to carry
out work activities for a third party or for himself. The word “exploited” refers to the situation
where adequate compensation is not provided to the worker for the work done by him or her and
unfair advantage is taken of his position (section 271.1A of the Criminal Code)
Ivan has been provided with cleaning work in the restaurant partially owned by Sunny
Ming and Dusty Dee. It has been provided to the case study that no remuneration is provided to
Ivan for the work done by him. However this Activity will be considered as work under the
provisions of section 245 AH as a reward which Ivan is getting is not to pay the legal fees to his
lawyer.
In the given situation that can be provided that Sunny Ming and Dusty Dee have violated
the provisions that out by section 245AC. The section states that Where are lawful non-citizens
14 Migration Act 1958 (Cth) at section 245AD(1)
15 Migration Act 1958 (Cth) at section 245AD(2)
16 Migration Act 1958 (Cth) at section 245AH
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has been allowed to work by a person or has not been stopped from working it will constitute a
breach of this section by the person. This is because Ivan is a lawful non-citizen of Australia and
has a bridging E visa. Initially it was their responsibility to verify the working rights of Ivan
under the process provided through the Migration Regulations. However they have not done so.
In addition they had the knowledge that condition 8101 is imposed on the visa held by Ivan
which does not allow him to work in Australia. However they have still allowed him to work in
the restaurant and Thus the provisions of section 245 AC have been violated. For this offence
they may be imprisoned for a period of 2 years and may have to pay a penalty which may extend
up to $102,000.
Further through the application of the rules that out under section 245AD of the Act it can
be stated time Sunny Ming and Dusty Dee have aggravated the offence. The Section provides
that a person will aggravate the offence were he allows a lawful non-citizen to work in Australia
and such person does this in a reckless manner and exploit the workers for personal benefits.
Sunny Ming and Dusty Dee have violated the provisions under this section as although they have
the knowledge about the restrictions imposed on Ivan in relation to work the allowed him to
work and further exploited him by not giving him any remuneration for the services provided by
him. The element of exploitation can be further established by stating that they took advantage of
the position in which Ivan was. In relation to this opens they can be in present for a period of 5
years and may have to pay pecuniary penalty which may extend up to $225,000.
Question 3
The case study states that Ivan is currently holding a Bridging E visa which has been
imposed with condition 8101 which prevent him from indulging in work activities in the country.
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When a person is found to have violated a condition imposed on a visa held by him or her, the
person is subjected to severe consequences which may even extend to cancellation of the visa.
Certain situations are provided by the Act through which it has been provided that the condition
would not be treated as violated if the person has entered into specified work related activities.
These activities consist of activities which are done towards the benefit of the society voluntarily
or an activity which is done in relation to a non profit organisation. In addition any activity
which would not have been performed by a permanent citizen of Australia is also exempt from
determining the breach of this condition. However Ivan has not indulged into any such activity.
It has been provided through the Act that before taking a decision to cancel the visa of a person
because of condition violation it is the duty of a Minister or his delegate to take into account the
extent of the violation and the reason for which the violation has been made. In addition it is
generally seen that the minister or his delegate does not cancel the visa of the person where the
circumstances which led to the violation of the condition is beyond the person’s control. Any
detriment which the family members or the dependents of such person may be subjected to by
the cancellation of the visa is also taken into account by the Minister or his delegate while
making a decision.
The case study has stated that in spite of being imposed with condition 8101 which does
not allow him to work in Australia Ivan have taken part in work related activities. In the given
situation the minister or his delegate has the power to cancel the Bridging E visa held by Ivan. In
the light of the above discuss rules the Minister or his delicate would also take into consideration
the situation which instigated Ivan to take part in work related activities and the extent to which
he has indulged into such activities. It is clearly provided through the case study that Ivan has
only entered into work activities in order to pay for the legal battle with respect to a protection
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visa. This situation is actually beyond his control as significant fees are required to carry out the
legal proceedings. He has not taken up the job for money as he does not receive any
remuneration. By taking into consideration the facts of the situation the Minister or his delegate
may not cancel the visa held by dash.
Question 4
If it is assumed that the visa health by Ivan would be cancelled by the Minister there are
significant circumstances which he may have to face. The case study states that Ivan holds a
Bridging E visa which means that he is still a lawful non citizen. His status is going to be
converted into an unlawful non citizen under section 1417 of the Act if his visa is cancelled. In
addition he would have no right to stay in Australia any longer without holding a valid visa as he
is no longer a lawful non citizen.
Firstly, Ivan may be put under immigration detention if his visa is cancelled by the
department. An officer is provided through section 189 of the Act right to arrest and detail any
unlawful non-citizen. Any unlawful non-citizen who is present in the migration zone can be
arrested by the officer through the virtue of this section18. Thus as Ivan has become a lawful non-
citizen he may be put under immigration detention until further directions are provided.
Secondly, he is most likely to be removed from Australia. Officers have been provided a
right through the virtue of section 198 of the Act to remove any unlawful non-citizen from
Australia19. There are several situations which are provided by this section where an officer can
remove an unlawful non citizen from Australia. The section states that where the visa application
17 Migration Act 1958 (Cth) at section 14
18 Migration Act 1958 (Cth) at section 189
19 Migration Act 1958 (Cth) at section 198
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of a person in immigration detention has been cancelled the person has to be removed from the
country. Therefore the cancellation of Ivan’s visa would not allow him to stay in Australia.
Thirdly, there will be significant problems which Ivan will be subjected to while making
future application for an Australian Visa. This is because where the visa application or a visa of a
person has been cancelled there are only a very limited kinds of visas for which a person can
make an application. The only visa he would be able to apply in the given situation is a
protection visa. However the case study has stated that a protection visa application has already
been made by Ivan. Therefore there are no chances for him for making a further application for
an Australian Visa if his visa gets cancelled. Furthermore the work experience which has
collected by Ivan by working on the Bridging E visa would not be taken into account while
assessing future visa applications. This is because under the provisions of the Act any experience
which is collected by the person through the violation of a condition imposed on the visa is not
taken into consideration while accessing a visa application.
Therefore the above three consequences would be applicable on Ivan if his Bridging E visa is
cancelled by the department because of violating 8101 condition.
Question 5
According to the case study while Ivan was working in the Hotel named Chao Ming he
had entered upon into a sexual relationship with an Australian lady named Lucy. When such
relationship had been entered upon into by Ivan he was a lawful non-citizen as he was holding a
Bridging E visa. Through the virtue of such relationship Lucy give birth to a child who was born
in Parramatta. The Act only deals with children who have been born between non citizens of
Australia. The section which specifically set out the status of a child who has been born in
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Australia is Section 78 of the Act20. According to the section the child is provided with the
immigration status of one of its parents. In this situation the immigration status of the parent
which is more beneficial to the child is provided to the child. However it has been provided
through the case study that the child which has been born in the situation is between a lawful non
citizen and the citizen of Australia. According to the rule of citizenship child who has been given
birth in Australia and where one of the parent of the child is an Australian National the child by
the virtue of his birth attains Australian citizenship. In this situation it is clear that the mother of
the child Lucy is an Australian citizen and therefore the child will evidently be a citizen of
Australia as he would acquired the citizenship through the virtue of his mother. The citizenship
status which belongs to Ivan and is not so beneficial for the child would not be considered in the
given situation.
20 Migration Act 1958 (Cth) at section 78
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