FCA 375 : Hasan v Minister for Immigration & Citizenship - Case Study - Law Assignment
Law Assignment :Jacky Liu (aged 30) is a Malaysian national who applied and has made a valid visa application for a Class UK/BS subclass 820/801 Partner visa to join her Australian citizen husband, Michael McDonald, in Australia. Jacky has a significant property development business in Malaysia which she inherited from her father. Jacky arrived in Australia last year as a tourist as she wanted to escape from the pressures of the business in Malaysia. While on holiday in a resort in Cairns, she met Michael, who is a barrister in Queensland, and they started a friendship which quickly developed into a relationship. It didn’t take long for Michael to know that he couldn’t live without her. He proposed to her and she immediately accepted. Michael and Jacky got married two weeks before the expiry of her visa. They quickly lodged an application for a partner visa for Jacky to stay in Australia before her visa expired. Surprisingly, Jacky has just received a Notice of Intention to Consider Refusal of her application under s.501(1) of the Migration Act 1958. As part of her application, Jacky submitted her Malaysian police clearance which shows that she was convicted of bribing a public official on one occasion four years ago. Even though the bribe only amounted to Malaysian Ringgit 5,000 (approx. AUD1,500), she received a 12 month jail sentence (non-parole) and a fine of Malaysian Ringgit $6,000(approx. AUD1,800). Michael immediately makes an appointment with you. He is concerned about their future if Jacky’s visa application is refused. He tells you that Jacky was investigated and convicted of bribery when she was in the process of beginning to set up her business. She informs you that apparently it is very common for business owners in Malaysia to bribe public officials to speed up the planning process. She served her sentence and continued to set up her business after her release, without resorting to bribes to assist the process. She has ceased engaging in such conduct as she had hard time coping with life in prison in Malaysia. Since her time in prison in Malaysia, Jacky has been struggling to cope and is seeing a psychologist who has diagnosed her with chronic anxiety. Michael is worried about what will happen if Jacky is not granted a visa to stay in Australia. He does not want her to return to Malaysia. He is unable to move to Malaysia as he has numerous court appearances in Australia as he is an experience commercial barrister. Jacky is remorseful about her past criminal actions and has changed her ways. She has no other criminal convictions, either before or after the incidents four years ago. She is aware that her foolish decisions four years ago are now affecting her new husband, and she wishes that she could go back in time and do things differently. Jacky has just advised you that she is 4 weeks pregnant and she does not want to be apart from Michael during her pregnancy. Question:
1) Prepare a letter of opinion to Michael and Jacky (jointly) as to your proposed response to the Notice of Intention to Consider Refusal under s.501(1) of the Migration Act 1958
You should also address the consequences in the event that the visa is refused, including any review rights and bridging visa issues.
In this regard, you must address the character test and its requirements in the context of the scenario.