Letter Of Opinion

QUESTION 1 

Jorani Sena is a Cambodian national who has applied for a subclass 820 Partner visa to join her Australian citizen husband, Jordan Smith, in Australia. Jorani is the owner of a children’s clothing store in Cambodia. She set up her business four years ago and it has expanded beyond her wildest dreams. 

Jorani came to Australia last year to conduct business meetings in the hope of starting an Australian branch of her business. While she was here, she met Jordan, an accountant, and they started a friendship which quickly developed into a relationship. It didn’t take long for Jordan to know that he couldn’t live without her. He proposed to her and she immediately accepted. Jordan and Jorani got married one week before the expiry of her visa. They quickly lodged an application for a partner visa for Jorani to stay in Australia before she became unlawful. 

Jorani has just received a Notice of Intention to consider Refusal of her application under s.501(1) of the Migration Act. As part of her application, Jorani submitted her Cambodian police clearance which shows that she was convicted of bribing a public official on two occasions seven years ago. Even though the bribes only amounted to $1,000 in total, she received a 14 month jail sentence (non-parole). 

Jordan immediately makes an appointment with you. He is concerned about their future if Jorani’s visa application is refused. He tells you that Jorani was investigated and convicted of bribery when she was in the process of beginning to set up her business. Apparently it is very common for business owners in Cambodia to bribe public officials to speed up the process. She served her sentence and continued to set up her business after her release, without resorting to bribes to assist the process. 

Jordan also tells you that Jorani is pregnant and has experienced complications with her pregnancy. Jorani has been struggling to cope and is seeing a psychologist who has diagnosed her with chronic anxiety. Jordan is worried about what will happen if Jorani is not granted a visa to stay in Australia. He doesn’t want her to have to return to Cambodia with their child. He is unable to move to Cambodia as he has his own responsibilities in Australia as a partner of a major accounting firm. Jordan also explains that there has been significant interest in the establishment of an Australian branch of Jorani’s business. He believes that her business will provide a significant boost to the Australian economy. 

Jorani is remorseful about her past criminal actions and has changed her ways. She has no other criminal convictions, either before or after the incidents seven years ago. She is aware that her foolish decisions seven years ago are now affecting her new husband, and she wishes that she could go back in time and do things differently. 

Graduate Certificate in Australian Migration Law and Practice 

1. Prepare a letter of opinion to Jordan and Jorani (jointly) as to your proposed response to the Notice of Intention to Consider Refusal under s.501(1) of the Migration Act.
2. You should also address the consequences in the event that the visa is refused, including any review rights and bridging visa issues.
3. In this regard you must address the character test and its requirements in the context of the scenario. Do not address issues such as confidentiality.

Letter of Opinion to Jordan and Jorani in response to the notice of intention to consider the refusal under section 501 (1) of the Migration Act, 1958.

As per submitted facts, 

Jorani is a Cambodian national who has applied to the subclass 820 partner visa to join her husband Jordan in Australia. Jorani visited Australia last year for business purposes where she met Jordan and married him. They immediately filed for the partner visa before the presence of Jorani becomes unlawful. However, they received a notice under section 501 (1) of the Migration Act 1958 (Act). While making application she submitted her Cambodian police clearance which depicts that she was convicted twice (14 days) seven years ago for bribing the police official ($1000).   However, she does not resort to any of illegal activities and has established her business by complying due process of law. It is also submitted that the business of Jorani will be a significant boost to the economy of Australia. Also, she is pregnant and if her visa is reused then she has to leave Australia with the child resulting in separation of father-child. Further, their matrimonial home will be broke.  

Considering the above facts, section 501 of the Act is dealt with in detail along with analysing the consequences if the visa application is refused. The proposed response and opinion is submitted hereinbelow.

Analysis of Section 501 of the Migration Act 1958

Section 501 of the Act complies with the cancellation of the existing visa by Department of Immigration and Border Protection (DIBP) on the ground of a character of the applicant. 

Section 501 of the Act submits that either DIBP or the Minister for Immigration and Citizenship has the right to terminate the visa on the foundation of the character of the applicant provided that the minister rationally believes that the applicant cannot pass the character test or the applicant himself does not satisfy the minister that he can pass the character testFurther, under section 501 (3) of the Act, the Minister himself can stop the visa application on character grounds provided the same is in the national interest. Any cancellation under sub-section 3 of section 501 of the Migration Act 1958 is not subject to principles of natural justice.

Prior submitting an opinion to both Jordan and Jorani, it is important to evaluate the grounds under which the application of Jorani can be refused. 

Grounds for refusal visa application under section 501 of the Act – section 501(6) of the Act

The main basis under which the visa application can be cancelled is submitted hereinbelow. The same is analysed under the Ministerial Directions No 65. However, the Ministerial Direction 21 is replaced by Ministerial Direction No. 41. Currently, it is the Ministerial Directions 65 which are into operation (commences since December 2014) which deals with the refusal of visa application. 

1. When the applicant has a significant criminal record – a criminal record is considered as significant when the applicant is sentenced to life imprisonment or death; imprisonment or 12 months or more; imprisoned for 2 or more terms where the total sentence is for 2 or more years; the applicant is acquitted on the ground of insanity or in soundness. 
2. When the applicant has an association with a group or person who is under the impression of the mistier is suspect of criminal activity then the person lacks the character to satisfy the application under section 501 of the Act.  
3. The past and present general/criminal conduct of the applicant makes him not have a good character, such as, conduct of the applicant which shows disregard towards human rights, law or frequency or severity of the crime committed and the time elapsed since the offence was committed.