QUESTION

Graduate Certificate in Australian
Migration Law & Practice

BLO5607 – SUBJECT C: VISA COMPLIANCE, CANCELLATION
AND REVIEW
ASSESSMENT TASK 1 Semester 1, 2012

1. Students must answer all questions as indicated.  Make certain all answers are
clearly labelled.
2. Make certain that you enter your NAME and STUDENT NUMBER on each page.
Insert them into the header or footer for ease. You must include a coversheet
with your answers. This is available from the online centre. Save this page on to
your computer and insert it as the first page of your assessment.
3. This assignment comprises 15% of the assessment in this unit.
4. Your answers must be typed on one side of the paper, double-spaced and with a
wide margin.  Students should note that English expression; grammar and
spelling are taken into account in assessment of their answers.
5. SUBMISSION OF ASSESSMENT: Please check the online centre for the due
date. It is the responsibility of the student to ensure that the date for receipt is
complied with. It is intended that all assessment be lodged electronically. This will
automatically generate a receipt. Students must ensure they keep a copy of their
work.
6. WORD LIMIT: Word limits are indicated for certain questions and should be
adhered to with each answer.
7. All answers should be supported by reference to the relevant legislation
provisions of the Migration Act and Regulations.

Assessment Criteria:
Content 30%
1. Accurate answer to question
2. Accurately identifies and cites the law, policy and/or ethics relevant to
the facts provided.
Understanding 50%
3. Justifies answers by clear reference to the relevant facts and law.
4. Clearly identifies and discusses the issues raised by the facts.
Expression 20%
5. Presents information clearly and logically in a businesslike manner.

Graduate Certificate in Australian
Migration Law & Practice

QUESTION 1

Jackie Wu (22 years of age) is a citizen of China and arrived in Australia on a
student visa Class TU, sub class 573, valid for 3 years.  She commenced a
Bachelor of Commerce at the University of Queensland 1 year ago.

Yesterday her student visa was cancelled under s.137J of the Migration Act for
non-attendance at class and failing all her subjects as she has been busy
socialising and not concentrating on her studies.

She seeks your professional advice in relation to the following:

a) What bridging visa (if any) would she hold after the cancellation of her student
visa?  Could she obtain permission to work and/or study?

b) What bridging visa (if any) would she hold if she applied for review at the
Migration Review Tribunal within the prescribed time limits?  Could she obtain
permission to work and/or study whilst the review process is pending?

(6 marks)

c) What bridging visa (if any) would she hold if she applied to the Minister to
exercise his discretion in the public interest after the Migration Review
Tribunal affirmed the cancellation of the visa?

(3 marks)
SOLUTION

A.    Professional Advice to Jackie Wu for cancellation of her student visa under s.137J of the Migration Act

1. 1.     What Bridging visa (if any) could she hold after the cancellation of her student visa? Could she obtain permission to work and/or study?

Jackie could apply for a special category visa after the cancellation of her student visa.  No, she cannot obtain permission to work/study under the special category visa.

1. 2.     What bridging visa (if any) would she hold if she applied for review at the Migration Review Tribunal within the prescribed time limits? Could she obtain permission to work and/or study whilst the review process is pending?

No, Jackie Wu cannot obtain permission to work and/or study whilst the review process is pending. This is because Jackie Wu is not an Australian citizen.  Considering that Jackie Wu may have got plans of her own, such a plea could be positively addressed by the Migration Review Tribunal, if Jackie Wu marries an Australian citizen with genuine intention that is unrelated to the visa case.

1. 3.     What bridging visa (if any) would she hold if she applied to the Minister to exercise his discretion in the public interest after the Migration Review Tribunal affirmed the cancellation of the visa?

Jackie Wu could apply for a protection/Safe haven visa after the Migration Review Tribunal has affirmed the cancellation of her student visa.  The result to such an application could be inconsistent. This is because it is not the minister’s duty to exercise his discretion in the public interest and grant Jackie a student visa. The minister can choose not to exercise his discretion because undertaking such an exercise makes the minister liable to answer the parliament.

In the above situation in which Jackie has applied to the minister, there is a fair chance that the minister may not reply at all within the prescribed time limit to such a response.  Jackie Wu would be granted a visa in a case the minister is non- responsive for any reason whatsoever.   (Rood D, 16 March 2006).

B.    References

1.  ‘Failed Uni Students Threaten Hunger Strike’, Sydney Morning Herald (16 March

2006). Rood D,

1. Cash Cow” Students Take Stand against Uni’, the Age (14 March 2006).
2. ‘Failed Uni Students Threaten Hunger Strike’, Sydney Morning Herald (16 March 2006).

K085

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