Review on Subclass 309 Visa and Divya & Arvind Case Study – Law Assignment Help

Assignment Task

Task 

The date is 24 April 2022. You work for Star Lawyers, an immigration law firm. Your supervisor has asked you to provide her with a critical review of the following scenario. Arvind arrived in Australia from Sri Lanka as a refugee in 2010. He was granted a permanent subclass 866 protection visa in 2010 and became an Australian citizen in 2018. Arvind’s wife Divya is also a citizen of Sri Lanka, although she was resident in India from 2010.
In 2018, Divya applied for subclass 309 and subclass 100 partner visas. Arvind was the sponsor on that visa application. During the processing of Divya’s subclass 309 visa application, Divya was asked by the Department to provide proof of her identity. In response, Divya provided certified copies of Sri Lankan identity documents for herself and Arvind. She subsequently provided the originals of those documents to the Department.
Divya was granted a subclass 309 partner visa in 2021. She arrived in Australia that year. Divya’s application for a subclass 100 partner visa is still being processed and has not yet been determined.

On 1 April 2022, Divya receives an invitation to comment via email under section 107 of the Migration Act. Relevantly, this invitation states as follows:

•  The Department has re-tested the identity documents provided by Divya in support of her subclass 309 visa application.
•  The identity documents provided by Divya appear to have been altered. In particular, the original dates of issue on those documents have been erased and new dates of issue have been inserted.
•  The Department is considering whether to cancel Divya’s subclass 309 partner visa under section 109 of the Migration Act.
•  Divya has 28 calendar days to respond from the date on which she is taken to have received the notice.

Divya and Arvind have provided the following instructions to Star Lawyers:

• Arvind and Divya do not know if these identity documents are genuine. Divya was forced to pay a bribe to an agent in Sri Lanka to obtain these documents; she does not know if the agent manufactured the documents himself, or if he arranged for them to be issued by the government.
• Arvind and Divya did not mean to mislead the Australian government. They tried very hard to get authentic Sri Lankan identity documents, but they were unable to do so. Paying a bribe was the only way in which they could obtain these documents in support of Divya’s visa application.
• Arvind and Divya are not aware of any other circumstance in which they have misled the Department, or in which they have provided any false or misleading documents or information to the Department.
• Divya is very afraid that, if her subclass 309 visa is cancelled, she will be returned to Sri Lanka. She is afraid that, if she were to be removed to Sri Lanka, she would face a real chance of persecution because of her perceived political views (as a perceived opponent of the government) and because she is a woman.
• Arvind and Divya are both very active in their local community in western Sydney. Divya coaches a local cricket team and Arvind works as an interpreter at a community legal centre. They are both also studying to become lawyers.

Your supervisor wants to prepare a response to the Department’s invitation to comment. To assist in preparing that response, she has asked you to answer the following questions.

Question 1

Advise Divya on the appropriate response to the proposed cancellation of her subclass 309 visa. In your answer, discuss:

• whether Divya has failed to comply with her obligations under sections 101, 102, 103, 104 or 105 of the Migration Act;
• what the Minister will be required to consider in Divya’s case under s 109(1) of the Migration Act, including any circumstances prescribed under cl 2.41 of the Migration Regulations relevant to Divya’s case; and
• whether the Minister will be required to cancel Divya’s visa.

Question 2 
If Divya’s subclass 309 visa is cancelled for the reasons proposed in the Department’s invitation to comment dated 1 April 2022, how will this affect her ongoing application for a subclass 100 visa? In your answer, please also address Public Interest Criterion 4020 (in Schedule 4 of the Migration Regulations).

Question 3 
If Divya’s subclass 309 visa is cancelled, what options for review of that cancellation decision are available to her? In your answer, discuss:

• the advantages and disadvantages of each option for review;
• what procedures will be followed on each option for review; and
• which option for review would be most beneficial for Divya, and why