It is August 2024 and you are happy to be starting your 7134LAW work placement with a

reputable migration practice. Your supervisor tosses a file on your desk. "Read through

this file, prepare a memo and brief me on it tomorrow - time is of the essence" she says

as she heads off to an AAT hearing with her client.

Slightly daunted but also up for the challenge, you open the file and start reading. The

very first document is a Notice of Intention to Consider Cancellation (NOICC) and you

immediately understand your supervisor's urgency. You read through the NOICC and the

rest of the file and note the following:

Lupita Alonso Cmara is a citizen of Mexico. She arrived in Australia in early

March 2015 as the holder of a Partner (Provisional) (Class UF) subclass 309

visa. At that time, she was in a de facto relationship with Darryl Kerrigan, an

Australian citizen. At the time of her arrival, she was pregnant with their first

child.

Going from today's date, the NOICC is dated two days ago, and Lupita received

it by email.

The NOICC states that Lupita's current Australian permanent residence visa may

be cancelled on the basis that she has not complied with some identified sections

of the Migration Act.

However, you note from the NOICC that this is not a s501 cancellation and you

realise that you need to learn more about the cancellation power set out in the

NOICC and on what grounds it can be exercised.To respond to the NOICC effectively you realise you will need to find out more

information from Lupita. Your supervisor grants you permission to contact Lupita over

the phone to get some more information. Lupita tells you that she speaks English well

and does not require an interpreter. She is happy to talk to you and explains the

following:

She met her former partner, Darryl (an Australian Citizen), in Mexico when he

was travelling for holidays in early 2012. Lupita was working as a tax accountant

on a street which Darryl regularly visited for breakfast. A casual relationship

between them commenced in the weeks before Darryl returned to Australia.

The two stayed in touch and Darryl returned to Mexico to see Lupita again in

February 2013. On this trip they commenced living together in her apartment and

they continued to do so for more than twelve months. Darryl asked Lupita

whether she would move back to Australia to live with him in his home town of

Dalby and she agreed.

As the couple both spoke English well, they felt confident that they could prepare

Lupita's offshore partner visa application themselves...How difficult could it

possibly be?

They provided a lot of legitimate evidence to prove that they were in a genuine

relationship and were living together at the time of Lupita's combined Partner

(Provisional) (Class UF) subclass 309/ Partner (Migrant) (Class BC) 100 visa

application. The application was lodged in February of 2014 after the couple had

lived together for the required twelve months.

As Darryl was the more computer literate of the two - he was the person who

entered the required information into Lupita's ImmiAccount and submitted the

visa application. Lupita tells you that she will email you a copy of the complete

visa application form - but explains that the following was some of the

information included in her application form which she was a bit worried about:

o In response to the Question "Have you ever been refused a visa to any

country other than Australia?" Darryl answered on behalf of Lupita by

ticking 'no'. She tells you that this response was not in fact true - as she

had been refused a Sri Lankan visitor visa in 2004 as she forgot to send a

copy of her bank statement to prove that she could support herself while

there on holidays. Darryl told her that he thought this refusal mightcomplicate the current visa application and that is why she thought it

would be better to keep this information to herself.

o In response to the Question "Have you ever previously been married or

in a de facto relationship?" Darryl answered on behalf of Lupita by

ticking 'no'. This answer was also not true as she had previously been in

a de facto relationship for around 2 years just prior to meeting Darryl. She

provided this incorrect answer because she was worried that the

Department of Home Affairs might doubt the genuineness of her

relationship with Darryl because she had until quite recently been in this

other relationship.

After successfully weaving this web of lies, Lupita tells you that her subclass 309

partner visa was granted in February of 2015. She then made the necessary

arrangements and travelled to Australia in March 2015 to live with Darryl on a

permanent basis in Dalby. Lupita sold her apartment in Mexico prior to coming to

Australia and did not want to pay international money transfer fees to have

access to this money in Australia. As such she brought it in her carry-on luggage

in cash - the equivalent of $100,000 Australian Dollars in Mexican Pesos. On

her Incoming Passenger Card she was asked: 'Are you bringing into Australia

AUD $10,000 or more in Australian or foreign currency equivalent?'

- Lupita

dishonestly marked this question 'no' as she was worried that she might be

charged some sort of Australian tax on the money.

Lupita was granted immigration clearance without incident and she and Darryl

commenced living happily together in Dalby.

In June of 2015 their first daughter, Karen was born in the Dalby Hospital. After

Karen's birth neither Darryl nor Lupita got much sleep. This lack of sleep made it

hard for Darryl to keep up his work as a long-distance truck driver. In response

he commenced using the drug Crystal Methamphetamine to help stay awake

during the long drives. His use of this drug becomes increasingly frequent and

Lupita tells you that she became increasingly worried about his behaviour. When

she confronted him about his behaviour in September of 2015 he responded

violently - slapping her. She contacts the Dalby police who attend the residence

and take Lupita and Karen to a domestic violence shelter. The police also apply

to the Queensland Magistrates Court for a domestic violence order which is

granted. Lupita tells you that she no longer lives with Darryl after September of

2015. At that time, Lupita did not notify the Department of Home Affairs about

their separation and neither did Darryl. In February of 2016 the Department of Home Affairs write to Lupita telling her

that it has been two years since she applied for her partner visa. The Department

invite Lupita to provide evidence of her and Darryl's ongoing relationship so that

they can consider her permanent Partner (Migrant) (Class BC) subclass 100 visa

application. Lupita tells you that she sent Darryl a text message with a copy of

the letter from the Immigration Department. Since their separation Darryl has

tried hard to sort his life out and stopped using drugs. While the couple have not

reconciled (and do not intend to reconcile), Lupita still thinks Darryl can be a

good man and wants him to continue to have a part in the life of their child.

Darryl has had occasional, supervised contact with Karen since their separation.

In response to the Department's letter, Darryl suggested that he was willing to

help Lupita provide false evidence to the Department that they are still in an

ongoing relationship. Lupita foolishly does not obtain migration advice about this

suggestion and agrees. They provide this falsified evidence to the Department in

March of 2016 and Lupita's subclass 100 visa is granted in April of 2016.

Later in 2016 Lupita got a part time job as a receptionist for the Western Downs

Council and could leave the domestic violence shelter for her own

accommodation. Lupita continued to live her life in Australia and in 2021 applies

for and is granted a Return (Residence) subclass 155 visa. She is well liked in

her job for the Council and the Mayor told Lupita that he does not know how they

would survive without her.

Until 2021 Lupita and Darryl had informal parenting arrangements in relation to

Karen. Darryl occasionally looked after Karen for a weekend. In 2022 Lupita

decides that a more formal arrangement needs to be put into place in the best

interests of Karen. She applied for child support and consults a family lawyer

about how to get some formal parenting orders put in place. When Darryl hears

about this he is very angry, telling Lupita in a text message: "you're a blood-

sucker - I am going to get you deported".

Karen has a good relationship with both of her parents. At the time of your

conversation with Lupita, Karen is doing well in Grade 5 at the Dalby State

School.

Questions

In your answer to the questions below, refer to the correct sections of the Act,

Regulations or Policy.

a) Given the information outlined above, identify the most likely cancellation power the

Department consider to be available to cancel Lupita's resident return visa? Identifyall the possible grounds which could allow this cancellation power to be used against

Lupita. Explain any other parts of the legislation which allow this cancellation power

to be used. Be as specific as possible in your answer.

b) Check the NOICC to make sure that it contains all the information that the legislation

and policy requires it to contain. Explain what information is required to be contained

in a NOICC if the Department are to be able exercise the relevant cancellation power.

(3.5 marks)

c) Make a note of how much time Lupita has to respond to the NOICC from the DHA.

Include any deemed notification period in your answer.

(3 marks)

d) What matters would the Department need to consider in deciding how to exercise its

discretion to cancel under the cancellation power you identified in Q1(a)?

(3 marks)

e) Consider what you know about Lupita's circumstances and complete the following

tasks:

Apply these circumstances to each of the matters you have identified in your

answer to Q1(d) and assess whether they weigh in favour of or against cancelling

her visa.

Identify any further information you may need to argue more persuasively.

Prepare a summary paragraph for your supervisor that sets out the most

persuasive factors in Lupita's favour, but which also acknowledges the

weaknesses of her case, if any.

(8 marks)

(NOTE - IF YOU PREFER TO ADDRESS (D) AND (E) TOGETHER YOU MAY DO SO)

f) If the Department cancels Lupita's visa, explain what her visa status would be, and

the consequences this would have for her. What would she need to do to regularise

her visa status?

(4 marks)(Total for Q1: 27 marks)

Support your answers with relevant legislative provisions and policy.

QUESTION 2

10 MARKS WORD LIMIT: 500 words

Scenario

Towards the end of your work placement, your supervisor offered you a job as a

migration assistant and a position as a migration agent on the proviso that you

successfully graduate, pass the Capstone Assessment, and register with OMARA.

You work hard, clear all the hurdles and are relieved to finally be able to register as a

migration agent. One of the first matters that you are assigned is familiar to you.

Remembering the memo that you prepared in relation to Lupita, you recognise the file

immediately. Unfortunately, after your supervisor sent a letter of advice to Lupita based

on your memo, Lupita did not respond to your firm's attempts to contact her.

However, Lupita has finally got back in touch with your firm and has sent through what

appears to be a Notice of Cancellation (NOC) from the DHA. You check the notice and

see that it complies with the relevant legislative requirements and is valid. You also note

that the date on the NOC was 3 days ago and that it was again sent by email to Lupita.

You immediately contact Lupita who explains that shortly after the time she received the

NOICC and our advice, the home she shared with Karen was destroyed in a bushfire

and she was simply not able to respond to the advice given by your supervisor and had

to focus on surviving day to day.

Lupita would now like some advice on her options.

Questions

a) Can Lupita have the decision to cancel her visa reviewed? Include in your answer:

(i) Whether the decision is merits reviewable.

(ii) Is she within the time frame for lodging a review application? Include the deemed

notification period in your answer.

(5 marks)b) Lupita has read the NOICC and NOC carefully and has identified that the Department

are still not aware of all the different ways in which she failed to comply with the

Migration Act. Specifically, the Department do not seem to be aware that she was

untruthful when completing her incoming passenger card. Lupita seeks your advice

about whether she is required to bring this to the attention of the Department?

Provide her with your advice by reference to relevant legislative criteria.