Assignment 3

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Jan 9, 2024

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Assignment 3 – Letter of Advice (40 marks) DUE: The assessment is due 2 November 2023 at 23:59 (Canberra, Sydney, Melbourne time) LENGTH: 2000 words SUBMISSION and RETURN of assessment: Via Canvas PURPOSE The purpose of this assessment is to determine your ability to analyse and contextualise learning in a practical professional situation. This assessment will assess Learning Outcomes 1-4. SCENARIO Question 1 - Abu Abu has resided in Australia since he was approximately 8 years of age (he does not know his exact birthdate) and entered Australia under the auspice of a Class XB, Subclass 200 Refugee visa. Abu identifies as Rohingya and was originally born in Myanmar. When Abu’s family came to Australia, they were able to access appropriate medical care. Shortly after arriving in Australia, they realised that his parents were HIV positive. Abu and his sister (Anita) were remarkably negative for the virus. Unfortunately, the disease had progressed and Abu lost both of his biological parents when he was 11 years old. Abu and Anita were adopted by an Australian citizen couple (Sarah and Tom) shortly after their parents passed away. Sarah and Tom have raised the children as their own and have no other children. Angry with the world, Abu rebelled when he was 18 years of age and became involved with a girlfriend who was a bad influence. In a bid to impress his girlfriend, Abu broke into a property, confronted the female victim, and stole expensive jewellery to give to his girlfriend. Abu’s girlfriend paraded the jewellery on social media and it wasn’t long before the police were able to trace the jewellery theft back to Abu. Consequently, in June 2005, Abu was convicted of robbery (section 411 of the Criminal Code 1899 (Qld)) and was sentenced to a head sentence of 16 months imprisonment (Abu only had to serve 3 months before being

released on Parole). The Department of Home Affairs did not consider cancelling Abu’s visa at this time (no correspondence was sent). After he served his time, Abu reconnected with Sarah and Tom and he happily resides with them. Sarah and Tom are now in their 80s and he offers them significant care (he financially and physically supports them). Without Abu’s care, Sarah and Tom would likely need to enter a care facility. Given Abu’s background, he has developed a deep interest in the cure for HIV. Abu has previously completed his Masters in Chemistry and is about to complete his PhD. Abu works for a large pharmaceutical company and is currently the lead on a HIV trial. During the process of the HIV trial, he knew of a friend that worked within the Government and had access to a confidential file which could escalate the findings of his clinical trial. Out of desperation, Abu took his friend’s Government access card (swipe card) and used his friend’s computer password without his knowledge and accessed the report. This report led to a major breakthrough for the HIV trial and it came to the attention of many countries around the world, reported as the ‘HIV cure’. Abu’s actions came to light following investigations. Abu was charged by police against section 408E of the Criminal Code 1899 (Qld). Abu has no remorse for his offending and pleaded guilty to the charge on 1 October 2023 and he was sentenced to two months in incarceration. Abu is currently serving his sentence at Palen Creek Correctional Centre and is not eligible for early-release. Anita is currently looking after Tom and Sarah although this is not a permanent solution as she has a young family she needs to look after. Abu is 36 years old, single and is heavily involved in the Rohingya community in Brisbane. Despite his offending, Abu still holds his position within the pharmaceutical company in Australia. Abu has engaged you to provide a formal letter of advice on the following: a) Whether Abu is liable for visa cancellation under section 501(3A) of the Migration Act 1958 (Cth)?

b) If Abu’s visa is cancelled, what is the process for the visa cancelation in accordance with the relevant legislation and case law? For example, what should the notification from the Department of Home Affairs contain and what does Abu need to do to ensure he has made representation? c) If Abu’s visa is cancelled, what does the Delegate take into account when considering any revocation? Please refer to the facts and relate them to the relevant law/parts in Ministerial Direction No.99. Please ensure your answer references (use footnotes and AGLC4 referencing guidelines) all relevant law and you have detailed how you reached your conclusion. You should consider using sub-headings. (1000 words - 20 marks) Question 2 – Nick Nick is currently the holder of a Class GK Subclass 482 Temporary Skill Shortage (‘ GK 482’ ) visa which is due to expire in 1 year. Nick has come to you after lodging a Class BX, Subclass 858 Global Talent (‘ BX 858 ’) visa in July 2023. Nick received formal correspondence (dated 16 October 2023) from a delegate of the Department of Home Affairs and has retained you to respond. The correspondence advised Nick that they have reason to believe the academic transcript provided with his BX 858 application was altered. Nick completed a Master of Business Administration from Harvard Business School. Nick advised you that he altered the academic transcript as he thought the Department of Home Affairs would be more impressed by high distinction grades (in reality, he just passed each unit). This academic transcript was not provided with the GK 482 visa application nor with the Expression of Interest for the BX 858 visa. Nick has been working for a Digitech company in Australia over the last three years and has brought in profits of $10,000,000 during that time. In recent months, Nick has pioneered a program in coordination with the Australian Government to create an intelligence software that aims

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predict severe weather events with certainty in Australia. Nick is internationally recognised by many reputable individuals/organisations in Australia and overseas. Please advise Nick of the following in a formal letter of advice: a) Is Nick’s BX 858 visa at risk of refusal in accordance with Public Interest Criteria 4020? If so, why? b) What should the natural justice letter from the Department of Home Affairs contain in accordance with the law? c) Set out the submissions you would make to the Department of Home Affairs, on why Nick may be able to satisfy subclause 858.227, having regard only to Public Interest Criteria 4020 . d) Advise Nick in relation to the Public Interest Criteria 4020 and the ongoing BX 858 visa application, including any potential ramifications Nick could face in the future arising from any refusal based of a failure to satisfy Public Interest Criteria 4020. Please ensure your answer references (use footnotes and AGLC4 referencing guidelines) all relevant law and you have detailed how you reached your conclusion. You should consider using sub-headings. (1000 words – 20 marks)

Assignment 3

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