LML6002 - Australian Migration Law - Cheryl Kong Case Study - Andrew and Jasmine Case Study Assessment Answer

Australian Migration Law - Cheryl Kong Case Study - Andrew and Jasmine Case Study Assessment Answer

Assessment Task:

Your new migration agent business, with Cheryl Kong, is performing well financially and you are getting more and more clients referred to you by previous clients. As a way to increase your knowledge, both Cheryl and you, sit in on each other’s consultations. This also helps if one of you is away from the office, the other can still assist on the file. As the business developed, you specialise in Student visas while Cheryl specialises predominantly in Partner visas. One sunny afternoon, while Cheryl and you were having a planning meeting to work out how to improve your professional development plans, Jasmine Keith and Andrew Sen unexpectedly come to your office. Both Cheryl and you consult with Jasmine and Andrew and are told that they lodged a Partner visa and it was refused last week. Andrew Sen is a citizen of Turkey who was recently granted a permanent Skilled Independent (Subclass 189) visa. Jasmine Keith is a citizen of Ireland who arrived on a Student (Subclass 500) visa three years ago which has now expired and is currently on a bridging visa which was granted in association with her Partner visa application. Andrew and Jasmine are not married but have lived together for the past two years and lodged their Partner visa application on the basis of being in a de-facto relationship. Andrew and Jasmine tell you that one of their friends, Tomi, who they no longer speak with, helped them with their Partner visa application as he had helped one of their other friends with their Partner visa application which was successful. You asked them if Tomi was a registered migration agent to which they said no. Jasmine tells you that on the day they were going to lodge their Partner visa, Tomi met up with Jasmine and told her that he is glad she has found a way to stay in Australia as he loved her and that he hoped that by giving her some more time in the country that she would spend more time with him and realise she loved him not Andrew. Jasmine told him that she did not feel that way and she thought Tomi had taken it quite well. She received a refusal letter for the Partner visa application last week because the Department of Home Affairs did not believe that the relationship was genuine. When you asked Jasmine and Andrew for a copy of their application, you find that they have only provided a statement about their relationship and nothing else. When you asked them where the other supporting information was, they advised that they had it all ready but Tomi told them they did not need to provide it and said a statement was enough. They understand they now have review rights at the Administrative Appeals Tribunal. However, they do not wish to review this application and instead start again. Cheryl advises that she will look into the matter and call them in for another consultation in two days. Both of you agree to look into this matter further and you will each prepare a file note, which you will compare to see if you reach the same conclusions.

The questions that require answering are as follows:

1. Can Andrew and Jasmine lodge a new onshore Partner visa in Australia and why?

2. What are the consequences of not making a valid visa application? You are not required to consider the Code of Conduct implications as part of this question.

SCENARIO continued

Both Cheryl and you call Andrew and Jasmine back to the office to provide them advice. Whilst providing the advice, Andrew and Jasmine tell you that they have decided that Jasmine will return to the UK to look after her mum who is ill whilst her Partner visa is processing and therefore wish to lodge an Offshore Partner (Subclass 309/100) visa. However, Andrew, having only recently received his permanent visa, wishes to remain in Australia, settle down and find a job here to set up for their future. Andrew will visit Jasmine as often as he can and understands that this is just for the short term until the Partner visa gets approved. Again, both of you agree to continue to look into this matter further together and to again, prepare a file note, which you will compare to see if you reach the same conclusions. The questions that require answering are as follows: 3. If Andrew and Jasmine wanted to apply for an offshore Partner visa, what are the valid visa requirements to do so? 4. Cheryl tells you that she has heard of the case of SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 which may assist in providing further advice in this case. You both decide to read the case and identify in your file note the implications of the decision of SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 in terms of the phrase “do not live separately and apart on a permanent basis.” You also agree to identify in your file notes, the principles of statutory interpretation (if any) that were employed by the judges in construing the provision, to ensure that you both understand the reasoning of the judgment.

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