Visa System in Australia-Free-Samples for Students-Myassignment

Questions: 1.Discuss any criminal implications for Ivan under the Migration Act 1958 (Cth) by undertaking cleaning services at Chao Ming? 2.Discuss any criminal implications for Sunny Ming and Dusty Dee under the Migration Act 1958 (Cth) in permitting Ivan to undertake cleaning services at Chao Ming? 3.Given Ivan has been providing cleaning services whilst subject to visa condition 8101, what will happen to Ivans Bridging Visa E? 4.Assuming Ivans Bridging Visa E is cancelled, outline three consequences that are likely to transpire for Ivan under the Migration Act 1958 (Cth)? 5.Whilst working at Chao Ming, Ivan had a sexual relationship with an Australian citizen named Lucy Lee. As a result of that relationship, Lucy gave birth to a baby boy named Roger Nguyen in Parramatta. Given that Ivan is a non-citizen, what is the immigration status of Roger? Answers: 1.Under the federal Migration law which is governed through the provisions of the Migration Act 1958 (Cth) (MA) it is a criminal offence in case were a person who is a non citizen and is not allowed to work and is working in Australia. Provisions of Section 235 of the MA[1], deal with offences resulting out of working in Australia for a person. According to subsection 235(1) in situation where there is prescribed conditions applicable on a temporary visa which is held by a person which restrict such person from working in Australia and where such person does not comply which such condition the person would be held liable for the breach section 235 and commits an offence under this section. As stated by subsection 235(2) with respect to subsection (1) a condition imposes restrictions in relation to a work which may be done by a non-citizen, however not only in case were it restricts the person from doing work which has not been specified, work that has been specified or any work[2]. In addition it has been provided through subsection 235(3) of the MA that an unlawful person indulging in work within Australia for a reward or any other purpose is liable for an offence under the section[3]. As provided by subsection 235(5) when an offence is constituted under the provisions of subsection 235(1) or 235(3) the person is liable to pay a fine which is limited to 100 units[4]. In addition as per subsection 235(4)(b) the penalty for violating subsection 235(1) or 235(3) results in a strict liability offence under the provisions of criminal code 6.1[5]. There are certain defenses which are provided under subsection 235(6) and (7) of the MA which states that were a person is doing a work which is approved he or she will not be liable for the breach of this section[6]. In addition section 235 of the MA has out beyond any doubt that when a non-citizen is performing a work in Australia which they are not allowed to perform work at all or perform a specific work it results in a criminal offence. In addition a condition may prevent a non citizen for carrying out any work, or a specified work or any work other than what has been restricted. The word work is interpreted in a very wide manner. As per the MA work is any activity which takes place in Australia and is entitled to attract a form of remuneration. In addition work refers to any work for a reward or otherwise. In the given situation it has been provided that Ivan Nguyen who is a Chinese national is holding a Bridging Visa E which is imposed with the provisions of condition 8101. According to this condition the holder of this visa is not allowed to work in Australia while holding the visa. This visa has been provided to him as he has made an appeal for the grant of protection visa. However for the purpose of paying legal fees he has started to work against the condition in a place owned by the lawyer. In the given situation he has violated the provisions of section 235(1) by working while being a non citizen. Thus he is liable to pay a penalty which may extend to 100 unites which is approximately around $10,000. This is a strict liability offence under criminal code 6.1[7]. This means that the offence committed by him does not require evidence of any blameworthy mental state to be constituted. Thus in the given situation where a strict liability offence has been committed by Ivan Nguyen she is liable to be pay the fine under section 235. Ivan is also liable to have his Bridging E visa cancelled. 2.In the same way where a non citizen is liable for not complying with the conditions imposed on a visa with respect to working in Australia the person who has provided the non citizen an opportunity to work in Australia is also liable under the provisions of the MA. Under the MA it is not legal to provide work to a person who does not have the right to work in Australia. Such rights may be restricted in relation to a particular work, any work other than the particular work or any work at all. Allowing a person who does not have the right to carry out work in Australia is a criminal offence as well. The provisions as provided under Section 245AA to Section 245AK deal with the liability of a person who allows a non citizen to work in Australia. Section 254AA provides an overview in relation to the situation. Through this subsection offences are created and civil penalties are provided. These are done on relation to specified situations. These include the situation where an unlawful or lawful non citizen is allowed or is referred by a person to work in Australia[8]. Where a lawful non citizen is allowed or is referred by a person to work in Australia in breach of a specific visa condition. The meaning of lawful non citizen is provided by section 13 of the MA[9] and the term work and allows to work are define through section 245AG of the MA[10]. Ivan is a lawful non citizen as he is holding a Bridging E visa and has applied for a protection visa under the provisions of section 13 of the MA[11]. Provisions in relation to allowing a lawful non citizen to work in Australia which are in breach of working conditions are provided under subsection 245AC of the MA[12]. It has been provide through this section that there will be a breach on the part of the person when the person has allowed, or does not restrict the allowance to let another person work where such person is a lawful non-citizen. In addition such person is the holder of a visa which has been imposed with conditions which are related to restriction upon working and the worker has violated the work related condition by doing such work. However as stated by Subsection 245AC(2) the provisions of subsection (1) are not applicable where the employer has taken appropriate at proper time in relation to the verification of the worker that he has not violated any conditions impo sed on his or her visa. This verification can be done through the use of a computer system as provide by the Migration Regulation 1994 (Cth)[13], doing things which have been stated by the regulations. The penalty for committing such offence under subsection (1) is 2 years of imprisonment[14]. The burden of proof in relation to such allegation is on the defendant. Where a person is reckless the fault element under subsection (1)(b), (c) and (d) is acknowledged. In addition when subsection (1) is violated by a person he is liable for a civil penalty provision through which he has to pay 90 penalty units. As stated under section 486ZF the state of mind of a person in relation to civil penalty order is not applicable[15]. The aggravated offence in situation where a person has allowed or continues to allow a worker to work for him is dealt with by section 245AD of the MA. Under subsection (2) where a person has allowed or continues to allow a worker to work for and such person is a lawful non-citizen, his or her visa has work related conditions, the worker has breached the condition by doing the work, the worker is exploited and the person has knowledge or is reckless in relation to the situation will be subjected to five years of imprisonment[16]. Section 245AF of the MA provides situation in which penalties would not be applicable on a person appointing a worker who is a lawful non citizen and is working against the imposed condition on the visa[17]. Interpretation of working and allowing to work is provided under section 245AH[18]. According to the section work means an activity done for a reward or otherwise. In addition it has been provided by the section that it would only be deemed that a person has allowed a worker to work in situation where the worker has been appointed under contract of services or the person gets into an arrangement with the worker with respect to performance of work for himself or any third party. The meaning of the word exploited is provided under section 245AH of the MA which states that the word has the same meaning as provided under section 271.1A of the Criminal Code. Exploiting means not providing enough compensation to a worker against the effort provided by him for the employer. Thus the above rules have to be applied in the given situation to determine the criminal implications to Sunny Ming and Dusty Dee for employing Ivan in their restaurant. Firstly it has to be determined that whether the purpose for which Ivan has been employed accounted to work under the meaning provided by section 245AG of the MA[19]. In this situation Ivan was to provide cleaning services for a period of 40 hours a week for the restaurant, however he was not entitled to any compensation in from of money. Work under the MA means an activity which is done for getting a reward or otherwise. In this case the reward which Ivan was entitled to was that he would not have to pay any fee in relation to legal proceedings for his protection visa. In addition Sunny Ming and Dusty Dee were aware of the fact that Ivan has restrictions put on his visa where she was not allowed to work under condition 8101. Thus they have allowed letting Ivan work under the provisions of section 245AG. In addition it can also be stated through the application of section 245AC of the MA which states that that there will be a breach on the part of the person when the person has allowed, or does not restrict the allowance to let another person work where such person is a lawful non-citizen. In addition such person is the holder of a visa which has been imposed with conditions which are related to restriction upon working and the worker has violated the work related condition by doing such work, thus Sunny Ming and Dusty Dee has violated the provision. They have allowed Ivan to work even after having the knowledge that he is not allowed to work in Australia because of condition 8101. Thus through the breach of this section they would be liable to 2 years of imprisonment. In addition as a civil penalty they are liable to pay a fine which may extend up to 90 units. This penalty practically is $102000[20]. However, when the provisions of section 245AD are applied in the situation it can be stated that the said offence has been aggravated by Sunny Ming and Dusty Dee. This is because they have been reckless and had knowledge in relation to the visa condition imposed on Ivan. In addition they have exploited Ivan by not paying him for the job under the definition of exploitation. Thus they may be subjected to an imprisonment of five years. In this case they may have to pay a fine of $225,000[21] 3.It has been provided in the situation that Ivan is on a Bridging E visa and there is a condition 8101 imposed on it which does not allow him to work in Australia. A breach of condition by a person leads to serious a consequence which means that the visa of such person is subjected to cancellation. There are certain situations where it is deemed that condition 8101 has not been violated even where the person has indulged in a work activity in Australia[22]. These works may include a volunteer work such a work for the benefit of the community, a non-profit organization, would have not been done by a permanent resident of Australia or is unpaid. However while cancelling the visa the minister has to take into consideration reasons and extent with respect to the breach. However in general course the visa will not be cancelled where the circumstances are beyond the control of the person holding the visa. In addition the minister also takes into consideration any hardship which may be exp erienced the family members of the visa holder[23]. In the given situation it has been provided that Ivan has indulged into a work contrary to the visa condition imposed. Thus his visa is likely to be cancelled by the Department of immigration and border protection. However the department is likely to consider the circumstances in which Ivan has indulged in work and the extent of work which has been indulged by him. In this situation the circumstances for which Ivan has agreed to work is out of his control as he done not gave the funding required to continue the legal proceeding. In addition he has only indulged in the Job to pay his legal expenses and he is not paid for his services. Under these circumstances the minister may refrain from cancelling Bridging E visa of Ivan. The minister also takes into consideration the detriment to the dependents or family members of the person whose visa is to be cancelled. The visa may not be cancelled if such family members or dependents would be subjected to unfair detriments[24]. 4.As discussed in the above answer the minister may take a decision not to cancel the visa of Ivan taking into consideration his circumstances. However there are significant issues which Ivan would be subjected to situation where his Bridging E visa is cancelled. In this part of the paper three of the consequences which Ivan may be subjected to where his bridging E visa is cancelled are discussed. Section 14 of the MA provides a meaning of an unlawful non citizen. An unlawful non citizen is a person who is not a lawful non citizen as he does not hold a visa. In the given situation a Bridging E visa has been provided to Ivan as he is a lawful non citizen and has applied for a protection visa. Where his visa will be cancelled he will become an unlawful non citizen under the meaning of section 14 of the MA. If his Bridging E visa is cancelled he would lose the right to stay in Australia as it is only through the Bridging E visa he was able to stay in Australia as unlawful non citizens are not allowed to stay in Australia. The consequences of his Bridging E visa being cancelled are discussed below is details. Consequences of being under immigration detention Under section 189 of the MA an officer has the right to detain an Unlawful non-citizen where there is reasonable suspicion that such person is in the migration zone. The person may also be detained if becomes an unlawful person after entering the migration one. The section signifies that there is power in the hands of the officer to a detain a person who is an unlawful non-citizen in immigration detention. The person may be kept under immigration detention unless the visa status of such person is not sorted or the person is asked to be removed from Australia[25]. Consequences of being removed from Australia Section 198 of the MA provides provisions in relation to the removal of an unlawful non citizen from Australia[26]. Under the provisions of this section there are many circumstances under which an unlawful non citizen may be removed from Australia. One of such circumstances is that the officer has the right to remove a unlawful non citizen who is in detention from Australia where the visa of such person has been cancelled. Thus if the visa application in relation to the protection visa is cancelled Ivan will likely be removed from Australia. Further application and work experience If the Bridging E visa held by Ivan is cancelled, he would have very limited rights to make a visa application in Australia. He may apply for a protection visa. However in this case Ivan has already applied for a protection visa. If his bridging E visa and protection visa application is cancelled he will not be allowed to make an application for any other visa in future. In addition any experience which has been collected while working on bridging E visa would not be considered for future application. 5.In the given situation it has been provided that Ivan has engaged into a sexual relationship while he was working for Chao Ming with an Australian Citizen named Lucy. At this time he was a lawful Non citizen of Australia. With respect to such relationship a child has been born to them in Parramatta. Section 78 of the MA deal with the provisions in relation to the immigration status of a child born in Australia. The child acquires the visa status of the parent which is more beneficial[27]. However in the given situation it has been provided that Lucy who is the mother of such child is a citizen of Australia. A child who is born to an Australian citizen in Australia automatically attains Australian citizenship where one of the parents is Australian citizens or permanent visa holders when the child was born[28]. Thus in the given situation where it is clear that Lucy who is a Australia citizen and the mother of the child will automatically provide her citizenship status to her child a nd the child will become a Australian citizen irrespective of the citizenship status of Ivan. References Migration Act 1958 (Cth) at section 235(1) Migration Act 1958 (Cth) at section 235(2) Migration Act 1958 (Cth) at section 235(3) Migration Act 1958 (Cth) at section 235(5) Migration Act 1958 (Cth) at section 235(4)(b) Migration Act 1958 (Cth) at section 235(6) and (7) Criminal code 1935 at section 6.1 Migration Act 1958 (Cth) at section 245AA Migration Act 1958 (Cth) at section 13 Migration Act 1958 (Cth) at section 245AG Migration Act 1958 (Cth) at section 13 Migration Act 1958 (Cth) at section 245AC Migration Regulation 1994 (Cth) Migration Act 1958 (Cth) at section 245AC(2) Migration Act 1958 (Cth) at section 465ZF Migration Act 1958 (Cth) at section 245AD Migration Act 1958 (Cth) at section 245AF Migration Act 1958 (Cth) at section 245AH Migration Act 1958 (Cth) at section 245AG Migration Act 1958 (Cth) at section 245AC Migration Act 1958 (Cth) at section 245AD Hollifield, James, Philip Martin, and Pia Orrenius.Controlling immigration: A global perspective. Stanford University Press, 2014. Cholewinski, Ryszard, Richard Perruchoud, and Euan MacDonald.International migration law. TMC Asser Press, 2014. Chetail, Vincent. "International migration law."OUP Catalogue(2015). Migration Act 1958 (Cth) at section 189 Migration Act 1958 (Cth) at section 198 Migration Act 1958 (Cth) at section 78 Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds.From migrants to citizens: Membership in a changing world. Brookings Institution Press, 2013.