LML6005 Visa Compliance and Cancellation Case Study Sample

LML6005 Visa Compliance and Cancellation Case Study

SCENARIO

You are a registered migration agent. You received an enquiry from a client through your firm’s website. The client, Charlie, has asked for assistance in determining his visa status. You call the client the next day and book an appointment for him. The client attends your office. Charlie advises you that he is a Hungarian citizen and arrived in Australia on an eVisitor Class TV (subclass 651) visa four months ago. Two weeks ago, he lodged a Skills In Demand Class GK (subclass 482) visa whilst in Australia as he is an engineer and a local company had lodged their sponsorship and nomination for him. He received the outcome of this Skills in Demand Class GK (subclass 482) visa application today.

Q1: What is Charlie’s visa status as of today? Explain.

You advise Charlie of his visa status and he thanks you for your advice. You are surprised to hear from him 6 weeks later wanting to book another appointment. He is seeking your advice on whether he can remain in Australia as he has a renewed excitement for the job opportunity with the employer who sponsored him. Unfortunately for Charlie, once he received the outcome for his initial Skills in Demand Class GK (Subclass 482) visa, the employer had to withdraw their nomination. However, after getting to know Charlie better and being impressed by his talent, and given their sponsorship was approved, they have agreed to lodge a new nomination for him. While searching on the internet for what he needed to do from an immigration perspective, he came across a forum which stated that in his circumstances, he should apply for a Protection Class XA (subclass 866) visa as that would buy him time until he sorted out his affairs. He then lodged a Protection Class XA (subclass 866) visa online last week. Charlie would like your advice on a number of matters:

Q2: What bridging visa is he currently holding and does he have work rights?

Q3: Can he validly lodge a Skills in Demand Class GK (subclass 482) visa if the employer lodges a new nomination application? Based on your answer, what advice would you provide him in terms of what he should do to remain lawful in Australia and would he be eligible for work rights based on your advice?

Solution

Question 1: Charlie’s Visa Status as of Today

Answer:

Charlie initially entered Australia on an eVisitor Class (subclass 651) visa, which permits short-term stays for tourism purposes but does not allow for work as per Migration Regulations, 1994. This visa is valid for three months per visit within a 12-month period (Migration Regulations 1994, Schedule 2, clause 651.511(b)). Four months ago, Charlie lodged an application for a Skill in Demand Class GK (subclass 482) visa while in Australia. It means he was onshore at the time of application.

Since Charlie applied for the subclass 482 visa before his eVisitor subclass 651 visa expired, he was granted a Bridging Visa A (BVA) under the Migration Act 1958. The BVA for MBA Assignment Expert remains in effect until a decision is made on the new visa application (Migration Act 1958, section 82). Today, he received the outcome of his subclass 482 visa application. If his application was granted, he now holds a subclass 482 visa and is lawfully allowed to work in Australia under the conditions of that visa referring to Migration Regulations, 1994. However, if his subclass 482 visa was refused, his BVA ceases 35 days after the refusal unless he applies for another visa or merits review as per the Migration Act 1958 (Migration Act 1958, section 140).

If Charlie’s subclass 482 visa was refused, his bridging visa does not automatically allow him to stay indefinitely. Under Migration Act 1958, a visa refusal notice includes information on his rights and the time frame to apply for merits review with the Administrative Review Tribunal. If he seeks review within the prescribed period, his BVA remains valid until the Administrative Review Tribunal makes a decision (Migration Act 1958, section 368).

In a nutshell, if Charlie’s subclass 482 visa was granted, he holds that visa and has full work rights under its conditions. If it was refused, he remains on a BVA temporarily but needs to act within 35 days to avoid becoming unlawful (refugeecouncil, 2025). If he is eligible for review, his BVA remains in effect until the review process concludes. Therefore, Charlie must assess his visa status promptly and take appropriate steps to maintain lawful presence in Australia.

Question 2: Bridging Visa and Work Rights

Answer:

As Charlie lodged a Protection Class XA (subclass 866) visa last week after the withdrawal of his employer’s nomination, his previous BVA associated with his subclass 482 application ceased under the Migration Act 1958. However, upon lodging the subclass 866 visa, he was granted a new Bridging Visa E (BVE) under the Migration Regulations 1994.

The work rights for a BVE are subject to conditions. Under Policy IMMI 12/120, applicants for a subclass 866 visa are usually not granted work rights unless they demonstrate financial hardship (Migration Regulations 1994, Schedule 2, 651.511(b)). Since Charlie applied for the subclass 866 visa purely for strategic purposes rather than genuine protection claims, he is unlikely to receive work rights on his BVE unless he meets the hardship criteria (Migration Regulations 1994, Schedule 2, 651.511(b)). He may apply for work rights separately by providing evidence of financial hardship referring to the Migration Act 1958.

Charlie’s ability to work depends on whether he can satisfy the Department of Home Affairs that he is experiencing financial hardship. Under IMMI 12/120, financial hardship is defined as a situation where the applicant cannot meet basic living expenses (Migration Regulations 1994, Schedule 2, 651.511(b)). If approved, work rights will be granted as a condition of his BVE. However, given that his subclass 866 application is strategic rather than substantive, the Department may scrutinize his claim more rigorously (Migration Regulations 1994, Schedule 2, 651.511(b)).

Charlie may need to rely on financial support from friends, family, or community services until a final determination on his subclass 866 visa is made (Migration Regulations 1994, Schedule 2, 651.511(b)).

In addition, Charlie must consider his long-term visa options, as holding a BVE for an extended period with limited work rights may negatively impact his financial stability (legislation, 2025). If he finds himself ineligible for work rights, he may need to assess whether voluntarily departing Australia and applying for an alternative visa offshore would be a more viable solution (Migration Regulations 1994, Schedule 2, 651.511(b)).

Question 3: Validity of Lodging a New Subclass 482 Visa and Advice for Charlie

Answer:

Under the Migration Act 1958, if Charlie’s initial subclass 482 visa was refused, he is subject to a section 48 bar, which restricts him from applying for most visas while in Australia, including a new subclass 482 visa (Migration Act 1958, s 48). However, if his subclass 482 visa was granted, he remains on that visa and can work under its conditions (Migration Regulations 1994, Sch 2).

Since Charlie lodged a subclass 866 visa after his subclass 482 refusal, he is now only eligible for visa exempt from the section 48 bar, such as a Partner visa (subclass 820) or another protection visa as per declaration in Migration Regulations 1994, Sch 2. The most practical course of action for Charlie is to leave Australia and apply for a new subclass 482 visa offshore (Migration Regulations 1994, Sch 2, cl 651.511(b)). To avoid complications with future visa applications, he must also consider withdrawing his subclass 866 application if it was lodged for strategic reasons rather than genuine protection claims (Migration Regulations 1994, Sch 2, cl 651.511(b)).

If Charlie continues to stay in Australia on the Bridging Visa E (BVE), he will not have working rights. He has to seek for work rights under the financial hardship provisions of IMMI 12/120 individually (Immi, 2025). He must show that he is experiencing substantial financial difficulties (Migration Regulations 1994, Sch 2, cl 651.511(b)). If his work rights application is declined, Charlie may experience financial difficulties and restricted employment until his visa status is sorted out. This may reflect his inability and may end up relying on the community help or government support (Migration Act 1958, s 48). If Charlie departs Australia and applies for a new subclass 482 visa offshore, he would regain all the work rights once he gets back to Australia. This option is however more complicated and sensitive to time than the other options. It involves the employer’s consent, passing the skill and language tests, and passing other visa tests such as health and character tests (Migration Regulations 1994, Sch 2, cl 651.511(b)). The processing times may take some time. It is crucial for Charlie to seek the services of a migration agent or a legal expert to determine his eligibility and increase his probability of a successful application (Migration Act 1958, s 48).

Reference list

Administrative Review Tribunal, (2025). Migration and refugee decisions. Retrieved from: https://www.art.gov.au/ [Retrieved on 2 March 2025]

Department of Home Affairs, (2023). Visa conditions and bridging visas. Retrieved from: https://immi.homeaffairs.gov.au [Retrieved on 2 March 2025]

Higgins, C., Baker, S., Cousins, S., Wang, B. Z., Cheng, Z., Tani, M., & Jack, V. (2023). Refugees as skilled migrants: insights from Australia’s 2018 employer-sponsored refugee migration pilot. Social Indicators Research, 170(1), 323-338. Retrieved from: https://doi.org/10.1007/s11205-023-03130-9 [Retrieved on 2 March 2025]
humanrights,(2025).Responding to racism. Retrieved from: https://humanrights.gov.au [Retrieved on 2 March 2025]

Immi,(2025). Immigration and citizenship. Retrieved from: https://immi.homeaffairs.gov.au [Retrieved on 2 March 2025]

Legislation, (2025). Migration Act 1958. Retrieved from: https://www.legislation.gov.au [Retrieved on 2 March 2025]

Legislation, (2025). Migration Regulations 1994. Retrieved from: https://www.legislation.gov.au [Retrieved on 2 March 2025]
ombudsman, (2025). Helping people,improving government. Retrieved from: https://www.ombudsman.gov.au [Retrieved on 2 March 2025]

refugeecouncil, (2025). working with refugee communities and advocates. Retrieved from: https://www.refugeecouncil.org.au [Retrieved on 2 March 2025]