LAW506 Equity and Trusts Law Assignment Sample

LAW506 Equity and Trusts Law

PURPOSE

The purpose of this assessment is to determine your ability to analyse and contextualise your unit learning in a practical and professional situation. This assessment will assess Learning Outcomes 1-4.

SCENARIO

You work at migration firm ‘XYZ Migration’ as a migration agent, assisting the busy owner with her clients. Mrs Julieta Perez (Julieta), born 05 January 1989, is an Australian citizen. Julieta is due to give birth in 4 months, if all goes well. Her biological mother, Mrs Maria Diaz (Maria), born 08 December 1965, and a citizen of Uruguay, previously applied for two subclass 600 Visitor (Tourist stream) visas that were refused based on the assessing Department of Home Affairs (Department) officer not being convinced that Maria was a genuine temporary visitor to Australia (Sch 2, part 600, cl 600.211 of the Migration Regulations 1994 (Cth)). Julieta and Maria engaged you to assist with a subclass 600 (Sponsored Family stream) visa for Maria, which was validly lodged with the Department on 01 February 2024. That application was also unfortunately refused by the same assessing Department officer for the same cl 600.211 reasons. You received the visa refusal letter on 12 February 2024.

You were then engaged under a written agreement to assist with the Administrative Appeals Tribunal (AAT) review matter. The review application was validly lodged on 23 February 2024, and the relevant fee was paid.

What you know about Julieta and Maria

Julieta is desperate to have her mother here for the birth of the child as she has had a complicated pregnancy. Julieta is considered to be in a ‘high risk’ pregnancy category due to her age and previous miscarriages. Julieta is currently restricted to her bed at home on her doctor’s orders; her doctor told her to rest to avoid pre-mature labour as the baby (a boy) would not likely survive a pre-term birth. This is Julieta’s first baby. Julieta is very close to her sister, father and especially her mother, and has returned to Uruguay every year to visit her family but given her pregnancy complications, she did not go at Christmas as planned. Julieta does not see being able to travel to see her family in the next 12-18 months with a small infant and all the private hospital bills that have accumulated with the pregnancy complications. Julieta and her husband Luis, live in Newcastle, NSW. Luis is a chef at a busy Uruguayan restaurant and often works long nights and weekends.

Maria is married to Mateo Diaz, an accountant. Mateo cannot go to Australia as it is audit season and he is very busy with work and dance lessons. Maria is a Senior English Teacher at Ivy Thomas Memorial School in Montevideo, Uruguay. She has taught at the school for over 30 years and loves her job. She has been recognised as an exceptional teacher and promoted to the head of her department. Her employer is supportive of her trip to Australia for the birth of her grandchild. She accompanies the Secondary school-aged children to London, UK each year for a 2-week English cultural and language excursion and has never had any visa issues in the last 10 years of leading this excursion.

In 1998, when her children were 9 years and 7 years respectively, her and Mateo took them to Disneyland in California, USA for a 2-week holiday with no visa issues. Maria and Mateo go several times a year to Buenos Aires, Argentina, to attend the International Book Fair, concerts, and food festivals. The couple generally stays for 3-4 days on each visit and have never had any visa issues. Their other daughter, Dafne Garcia, is 32 years old and lives on the same street as her parents, Maria and Mateo. Dafne and her husband Julio, have two young children (aged 3 years and 12 months) who Maria dedicates her spare time to. Maria and Mateo are also Uruguay’s national over-50 tango dance champions and they will defend their title in November 2024 at the national competition held in Montevideo.

Your task:

Write a submission letter to the Administrative Appeals Tribunal on behalf of the review applicant addressing the refusal criteria and advocating for your client.
Your submission should:

• be written as a formal business letter to the appropriate division of the AAT. Note: you do not need to provide a searchable pdf per the practice directions, just a Word or Pdf file.

• be dated and include a fake case file number

• clearly identify the review applicant by name and date of birth, and any other relevant parties to the review matter

• clearly identify why the matter is a valid review application

• clearly articulate the reasons why cl 600.211 is met

• clearly articulate the action(s) you want the AAT to take

• include a list of attachments listing whatever evidence you think is relevant and supports the written submission. Note: you do not need to provide any forms or documents, just a numbered list of documents (by name) you would include in such a submission

• include any other matters or information you feel are relevant to the case

• Use AGLC4 footnoting to relevant legislative provisions from the Migration Act 1958 (Cth)¸ the Migration Regulations 1994 (Cth), relevant case decisions, practice directions and other materials relied on for your submission.

Solution

To
The Administrative Appeals Tribunal
Australia

Sir

Sub: Review Application for refusal of Visa of Ms. Maria

Case Number: 212/2024-AAT

This is to bring to your kind attention regarding the review application that has been submitted by Ms. Maria regarding refusal of Visa of subclass 600 Visitor Visa (Sponsored). The visa refusal letter was received on 12 February 2024. The review application was validly lodged on 23 February 2024, and the relevant fee was paid. The refusal was under clause 600.211. It is pertinent to highlight certain aspects related to the matter. I am writing this letter to you to shed some light on these aspects. These have been divided into three different sections.

Background

Ms. Maria, the applicant had applied for a subclass 600 (Sponsored Family stream) visa. Ms. Maria is a Uruguayan citizen who is married and has two children. One of her children is a citizen of Australia. Ms. Maria wished to visit Australia on a temporary visa to assist her daughter in Australia because she is witnessing complications.

Whether the matter is a valid review application

It is pertinent to identify whether a valid review application for MBA assignment expert has been made by the applicant. In this context, key aspects of the review application have been highlighted. The review application has been made for refusal to grant a Visa. As per Section 25 of the Administrative Appeals Tribunal Act 1975, the Tribunal can review certain decisions. As per Section 500(1)(c) of the Migrations Act 1958, the review applications may be made to the Administrative Appeals Tribunal for review. Thus, AAT has the power to review the visa application.

AAT can review the decisions covered under Part 5 and Part 7 of the Migrations Act 1958 . However, since the visa application is not under a protection Visa, Part 7 will not be applicable. Several factors have to be taken into consideration for this aspect. In Section 338, the definition of reviewable decisions has been provided. As per this, the conditions for decisions are not to be considered reviewable decisions. This includes the issuance of a conclusive certificate under Section 339 , the application has been made for a protection Visa, the Visa applied is for a haven visa or the decision is a fast-track decision. The current application is not covered by any of these conditions. Thus, the matter is a valid review application.

It is also pertinent to take into consideration other subsections of the Section 338 . The Sections 338(2), 338(5), and 338(6) apply to grant of visas to non-citizens. Considering the factors concerning the current application, section 338(5) would be applicable. As per these sections, a decision of refusal to grant a visa to a noncitizen will be considered a reviewable decision if it cannot be granted while the non-citizen is in the migration zone and the noncitizen was sponsored by an Australian citizen. In the present case, an application for subclass 600 Visitor (Tourist stream) visas has been made. This visa application has been sponsored by the daughter of the applicant who is an Australian citizen. As per the Regulations, the subclass 600 Visa cannot be granted when the non-citizen is a migrant.

The administrative appeal tribunal in this regard points out a few facts that are ensuring them to take over the good governance system of Australia. The visa application for Australia gets denied with proper notion under section 338 (5) that would be applicable while granting the migration procedure applicable for the visa review. The tribunal system defines with the subclass that only tourist visas are allowed in Australia. It gets activated with the granting of proper invitations made orally for the application tribunal. As per the sections that grant visas for Australia such as Sections 338 (2), (5), and (6). It is advisable to orally invite applicants by showing relationships with the invitees, such as sponsored by any daughter, or son of the applicant who has Australian citizenship. This contributes to the broad classification of administrative decision-making and makes for better development of Australia. Julieta has been relegated to her bedroom in the house by her doctor's instructions; her physician advised her to rest to prevent premature labor since the baby (a boy) would not likely endure a pre-term delivery. This is Julieta's first child. To enable the swift and effective resolution and disputes in specific domains of jurisdiction and/or categories of candidates, tribunals must have the necessary knowledge, processes, and accommodations.

Ms. Maria is employed in one of the prestigious schools in Uruguay as a senior English Teacher at Ivy Thomas Memorial School in Montevideo, Uruguay, and has over 30 years of experience. She was recently promoted to head of the department. She has also been visiting various places Internationally. her two-week cultural and language excursion to the UK annually. Apart from this, she has also visited Argentina to attend book fairs, concerts, and food festivals. There have been related issues in the last 10 years for the trips that have been made by her.

Meeting Criteria of Clause 600.211

An applicant of a subclass 600 Visitor Visa has to ensure that the conditions that are provided in the Migration Regulations 1994 are met. As per Clause 600.211, the applicant has to be satisfied with the conditions associated with the last substantive visa or subsequent bridging visa. It is also required that the applicant intends to comply with the conditions of subclass 600 visa and other conditions . The applicant had applied for subclass 600 Visitor (Tourist stream). From this perspective, the conditions that are required for subclass 600 Visa and other conditions have been evaluated. These are discussed below:

Conditions associated with Subclass 600 Visa – As per this, factors that would be considered will include adverse information or allegations against an applicant or their contacts in Australia, whether the applicant will be able to support themselves without the need to work in Australia or the risk that the applicant may work during their stay .

The Tribunal's mission is to look into governmental judgments on their merits, which means examining the data, law, and policy connected to a conclusion again and deciding whether or not it deserves to be confirmed, changed, or overturned. If a decision has to be set aside, a choice will be taken in its place. The Tribunal is said to put itself in the footsteps of the original decision-maker while making the replacement decision. An applicant, while having a subclass 600 visitor Visa, the tribunal of Australian law suggests that this will ensure of them to be provided as per the Migration Regulations Act 1994. Now the clause of 600.211 is to be satisfied with the conditions that Visa power can be bridged by taking the citizenship rights of people working and studying in Australia. This is a powerful clause of Australia which states Visa review applications with an applicant's possibility to study and work in Australia. This criterion serves as a benchmark against applicants to be evaluated underscoring the importance of meticulous attention to detail. This clause pertains to immigration, with administrative matters and legal proceedings by a clear understanding of the purpose to facilitate the focused analysis of the criteria involved. The Tribunal has been tasked with making the "correct or appropriate conclusion" in this matter. The AAT has been separated into four divisions: National Social Security Disability Insurance Programme appeals, security appeals, taxes appeals, and warriors' appeals, and it also has a General Administrative Division that handles every other instance. Maria is a Distinguished English Instructor at the “Ivy Thomas Memorial School in Montevideo”, Uruguay. She has been working at the institution for almost 30 years and appreciates the work she does.

In this regard, it is to be submitted that the applicant is employed in one of the prestigious schools in Uruguay as a senior English Teacher and has over 30 years of experience. She was recently promoted to head of the department and her trip to Australia has been supported by the employer for the birth of her grandchild. Thus, there is enough evidence that the applicant will not be dependent on the nominee while she stays in Australia. Moreover, there is no relation between the applicant, her daughter, or her son-in-law. Thus, it can be said that there is no risk that the applicant will engage herself in work during her stay in Australia.

Other Conditions – Certain other conditions will have to be fulfilled. This will include applicants' employment and financial circumstances, applicants' incentive to return to their home country, whether there are any compelling or compassionate reasons for traveling to Australia, any other application for another visa has been made. apart from this, time spent in Australia will be an important factor .

The majority of ASIO's security assessments focus on employee safety and the fight against terrorism checks. In terms of safety for employees, ASIO undertakes security evaluations at the demand of Australian government organizations for individuals whose jobs need to allow them to access national security classified material or locations to which access has been forbidden or limited for security reasons. The clause of 600.211, had developed with a phenomenon by the features which enacted to give a quick visa on the application as Maria is an exceptional English teacher and gets promoted as the head of her department. Her daughter used to live in Australia and thus she invited her to the birth of her grandchild. Thus her colleagues supported her for the birth of her grandchild and associated the trip with her. As per the section of 338 (5), she will get Visa easily as her daughter who has Australian citizenship is inviting her to Australia. She gets accompanied with secondary school children of London, UK each for the year of 2 weeks of English cultural language that she has never had any visa the last 10 years leading to this excursion. When her children were 9 and 7 years old, she and Mateo took their kids to Disneyland in California, USA, for an extended stay of two weeks with no visa challenges. Maria and Mateo go to Buenos Aires, Argentina, on several occasions each year to take part in the International Book Fair. Their second daughter, Dafne Garcia, 32, lives on the same street as her parents, Maria and Mateo. Dafne and her husband Julio have two little ones (ages three and twelve months), to whom Maria devoted her spare moments. Maria and Mateo are Uruguay's national over-50 tango performing champions, and they are returning to defend their title.

An explanation is provided for the factors that have been mentioned above. As already mentioned, the applicant is employed in one of the prestigious schools in Uruguay as a senior English Teacher and has over 30 years of experience. This shows that employment of the applicant would require the applicant to be available at the earliest. Moreover, there is enough evidence that there are no financial constraints that would deter applicants from returning to their home country. Also, the applicant has not made any other Visa and thus her intention to stay in Australia temporarily is quite evident. From the perspective of time spent in Australia, it is to inform you that the applicant is traveling to Australia for the first time. Her conduct has been quite satisfactory as she has been a frequent international traveler. Moreover, she intends to stay in Australia for the birth of her grandchild as her daughter is facing complications. The applicant intends to provide support to her daughter during pregnancy. Thus, she intends to stay in Australia for a limited time only.

The above discussion clearly shows that the conditions that are provided in clause 600.211 have been met satisfactorily and there is no evidence based on which the Visa application needs to be rejected. Documents that are required must be also provided. I am enclosing the salary slip and the employment letter of Ms. Maria. Apart from this, the acknowledgment letter and character certificate from her employer are also enclosed.
Action(s) expected to be taken

As per Section 414 of the Migrations Act, if a valid application has been made under Section 412, the Tribunal has to review a decision. However, a conclusive certificate must not be issued by the Minister. As explained earlier, the application for review is valid and hence, it is required that the Tribunal undertakes the review application. The powers to decide on the review application have been provided in Section 415 of the Migrations Act . The powers that are available to the Tribunal include affirming the decision that has been made or vary the decision. The Tribunal may set aside the decision that has been made and substitute it with a new decision. The application may as well be dismissed for non-appearance.

In case AAT decides to vary the decision or set aside the decision and substitute a new decision, it will be construed as the decision made by the Minister. However, it has to be ensured that the decision taken is as authorized by the Act or the Regulations.

The Supreme Court's ruling in Craig versus South Australia represented a watershed milestone in Australian law differentiating judgments from tribunals. The Court ruled established a tribunal's mistakes regarding the law are outside of the jurisdiction, whereas a court's errors are considered to fall under the age of jurisdiction. The actions to be taken are categorized with the power of the AAT. The tribunal is concerned with the act and policies and all the decisions regarding Australian laws. All the decisions taken by the migration are from the External Affairs Ministry of Australia. It is to ensure that the decisions are authorised with the Act of Regulations which is termed by Migrations Act 1958 and of the Migration Regulations of 1994.

The Court distinguished between mediocre courts and administrative hearings based on the fact that judicial agencies are staffed by individuals with legally binding legal credentials and hands-on experience, while administrative bodies usually consist of individuals with no credentials or training. Julieta and Maria were hired for assistance in helping Maria get a subclass 600 visa, which was appropriately filed with the Department of Homeland Security on February 1, 2024. Unfortunately, the same reviewing Department official denied the proposal for the same cl 600.211 grounds. This got a passport denial statement on February 12, 2024. The decision of refusal of Visa of Mrs. Maria is quite approachable and nothing can be identified as the cause to refusal of the Visa. According to the clause of 600.211 ground, proper actions can be taken against the Visa department and the tribunal may be held responsible for not giving the Visa approval. The Migration Regulations Act 1994 gave full-fledged approval of granting visa and the AAT can be used to properly review the appellation and grant Mrs. Maria’s application.

Taking into consideration the above provisions, the decision of the minister to refuse a Visa may be set aside. As per the provisions of the Migration Regulations, the applicant has fulfilled all the criteria that are required for the class of Visa that has been applied. Therefore, as per the Migration Regulations 1994, the Visa could have been granted. Therefore, if AAT decides the review application in favor of the applicant, it would be construed that Visa should have been granted. Because of this, it would be appropriate that a Visa be granted to the applicant.

Alternatively, if AAT is of the view that even though the decision for refusal of the Visa is incorrect, other criteria need to be evaluated, the application may be remitted to the department for fresh consideration with clear directions on which criteria have to be considered. This would also be favorable as the matter for consideration of the department would be limited and the aspect that is causing issues in granting visas would not be considered by the department.

In both cases, the concerns of the applicant would be addressed as the bottleneck in granting the visa will not exist. It is requested that a suitable decision is made taking into consideration the factors and submissions that have been made.

As discussed above, the key aspects associated with the case have been elaborated about the validity of the application and satisfaction of the conditions provided in clause 600.211. Recommendations have also been made regarding the appropriate actions that can be taken. Because of the above submissions that have been made, it is requested that appropriate actions are taken so that any adverse implications can be mitigated. Kindly, let us know if there is any other information that needs to be submitted.

Thanking You

Agent

References

Migration Act 1958 (Cth), s338

Migration Act 1958 (Cth), s339

Migration Act 1958 (Cth), s411

Migration Act 1958 (Cth), s412

Migration Act 1958 (Cth), s414

Migration Act 1958 (Cth), s415

Migration Regulations 1994 (Cth), Cl. 600.211