Detailed Analysis: Visa Condition Breaches under Migration Law 1958

This case study delves into the complexities of migration law, specifically focusing on breaches of visa conditions under the Migration Act 1958. It examines scenarios involving individuals like Ivan, who violates condition 8101 on his visa by providing cleaning services in exchange for legal fee waivers, leading to potential criminal liability under section 235. The analysis extends to Sunny and Dusty, who are found liable under section 245AC for allowing Ivan to work despite knowing his visa restrictions, potentially facing imprisonment and penalties. The study further explores the minister's power to cancel visas under sections 119 and 116, the implications of becoming an unlawful citizen under sections 13, 14, 189, and 196, and the restrictions on reapplying for a protection visa under section 48A. Finally, it clarifies the citizenship status of children born in Australia to at least one Australian citizen.

Running Head: MIGRATION LAW
Migration Law
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Author Note

1MIGRATION LAW
Question 1
(a)
It has been provided through the provisions of s235 of the Migration Act 1958 that in
case a person holding a temporary visa which has conditions which limit work by non-citizens in
Australia and such condition has been breached by the person it is to be considered as an offence.
The work has to be of a kind which has not been allowed by the conditions1. An offence which
has been mentioned in the section is a strict liability offence. In the present situation it has been
stated that Ivan has condition 8101 on his visa through which he is not allowed to work in
Australia. Although he is working for deriving legal fees for his protection visa and is not
receiving payment his actions would breach section 235. This is because he is getting his legal
fees waived off. Providing cleaning services is considered as a work under the application of
section 160(2)2 which clarifies that work can be done for a reward or otherwise. Therefore
section 235 has been breached by Ivan by providing the cleaning services and he is criminally
liable under a strict liability offence.
(b)
The provisions in relation to allowing a non citizen to work have been discussed through
the provisions of s254AC of the MA3. It has been provided through the section that a person will
be liable for contravening the subsection if a person allows or have continued to allow any other
person to work if such person is lawful non citizen and is staying in Australia on a visa which
contains visa conditions related to work and the worker is breaching the condition only because
he is doing the work the person who has allowed him to work would be liable for an offence
1 Migration Act 1958 (Cth) s 235
2 Migration Act 1958 (Cth) s 160(2)
3 Migration Act 1958 (Cth) s 245AC

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under the section. However the section is not applicable in situation where reasonable steps have
been taken by the person at relevant times to verify that the working is not violating any visa
conditions only because he is doing the work. The person who has committed such offence is
liable to be imprisoned for a period of two years. The person also gets a civil penalty for 90
units.
According to the facts of the situation it is clearly known to Sunny that there is a work
related condition on the visa held by Ivan and he is not allowed to work in Australia. Further it
has been provided that Sunny has allowed Ivan to work for a restaurant in which he is partner in
lieu of legal fees to be provided by Ivan. This means that the application of s245AC would
suggest that he is in breach of the section by allowing Ivan to work for him. In addition Dusty is
also liable under the same section as she has continued to allow Ivan to work under the meaning
of s 245AG of MA4 for her place as she was happy that she does not have to pay for cleaning
services. Thus Dusty is also guilty under s 245AC of the MA. Both Dusty and Sunny can be
subjected to imprisonment of up to two years and penalties worth 90 units.
(c)
Under the application of s 119 of the MA the minister may provide a notice of intention to cancel
visa held by a person in case he come to know that a visa condition imposed on the visa have
been breached by the person5. The power to cancel a visa has been provided to the minster under
section 116 of the MA6. It has been stated by the section that the minster can cancel the visa if
the visa holder has not complied with a visa condition.
4 Migration Act 1958 (Cth) s 245AG
5 Migration Act 1958 (Cth) s119
6 Migration Act 1958 (Cth) s 116

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As it has been provided that Ivan has been providing cleaning services which is a contravention
of the condition 8101 imposed on his bridging E visa, the visa may be cancelled by the minister
under his powers provided by s 116 and he may send a notice under s 119 of the MA.
(d)
As soon as the visa held by Ivan will be cancelled, he would be regarded as an unlawful citizen
in Australia as he is not holding any other visa at the time. This has been confirmed by s 13 and
14 of the MA7. The same will happen for Ivan
It has been further provided by the MA s 189 and 196 that once the person has become unlawful
citizen, he would be placed in immigration detention and would be continued to be detained until
he is granted a visa or is removed or deported from Australia8. The same will happen for Ivan
Ivan would further not be allowed to apply for any other visa if his protection visa application
fails. This is because a person who has got a protection visa application refused cannot apply it
again under s 48A of MA9.
(e)
Any child who has been born to at least one Australian citizen is Australia is an Australian
citizen by birth. Therefore, Roger would also be an Australian citizen as his mother was an
Australian citizen.
7 Migration Act 1958 (Cth) s 13 and 14
8 Migration Act 1958 (Cth) s 189 and 196
9 Migration Act 1958 (Cth) s 48A

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Bibliography
Migration Act 1958 (Cth)