Abu has resided in Australia since he was approximately 8 years of age (he does not know his exact birthdate) and entered Australia under the auspice of a Class XB, Subclass 200 Refugee visa. Abu identifies as Rohingya and was originally born in Myanmar.

When Abu's family came to Australia, they were able to access appropriate medical care. Shortly after arriving in Australia, they realised that his parents were HIV positive. Abu and his sister (Anita) were remarkably negative for the virus. Unfortunately, the disease had progressed and Abu lost both of his biological parents when he was 11 years old. Abu and Anita were adopted by an Australian citizen couple (Sarah and Tom) shortly after their parents passed away. Sarah and Tom have raised the children as their own and have no other children.

Angry with the world, Abu rebelled when he was 18 years of age and became involved with a girlfriend who was a bad influence. In a bid to impress his girlfriend, Abu broke into a property, confronted the female victim, and stole expensive jewellery to give to his girlfriend. Abu's girlfriend paraded the jewellery on social media and it wasn't long before the police were able to trace the jewellery theft back to Abu. Consequently, in June 2005, Abu was convicted of robbery (section 411 of the Criminal Code 1899 (Qld)) and was sentenced to a head sentence of 16 months imprisonment (Abu only had to serve 3 months before being released on Parole).The Department of Home Affairs did not consider cancelling Abu's visa at this time (no correspondence was sent).

After he served his time, Abu reconnected with Sarah and Tom and he happily resides with them. Sarah and Tom are now in their 80s and he offers them significant care (he financially and physically supports them). Without Abu's care, Sarah and Tom would likely need to enter a care facility.

Given Abu's background, he has developed a deep interest in the cure for HIV. Abu has previously completed his Masters in Chemistry and is about to complete his PhD. Abu works for a large pharmaceutical company and is currently the lead on a HIV trial.

During the process of the HIV trial, he knew of a friend that worked within the Government and had access to a confidential file which could escalate the findings of his clinical trial. Out of desperation, Abu took his friend's Government access card (swipe card) and used his friend's computer password without his knowledge and accessed the report. This report led to a major breakthrough for the HIV trial and it came to the attention of many countries around the world, reported as the 'HIV cure'.

Abu's actions came to light following investigations. Abu was charged by police against section 408E of the Criminal Code 1899 (Qld). Abu has no remorse for his offending and pleaded guilty to the charge on 1 October 2023 and he was sentenced to two months in incarceration. Abu is currently serving his sentence at Palen Creek Correctional Centre and is not eligible for early-release. Anita is currently looking after Tom and Sarah although this is not a permanent solution as she has a young family she needs to look after.

Abu is 36 years old, single and is heavily involved in the Rohingya community in Brisbane. Despite his offending, Abu still holds his position within the pharmaceutical company in Australia.

Abu has engaged you to provide a formal letter of advice on the following:

 

a) Whether Abu is liable for visa cancellation under section 501(3A) of the Migration Act 1958 (Cth)?

b) If Abu's visa is cancelled, what is the process for the visa cancelation in accordance with the relevant legislation and case law? For example, what should the notification from the Department of Home Affairs contain and what does Abu need to do to ensure he has made representation?

c) If Abu's visa is cancelled, what does the Delegate take into account when considering any revocation? 

Please refer to the facts and relate them to the relevant law/parts in Ministerial Direction No.99.

Answer rating: 100% (QA)

Letter of Advice Your AddressCity State PostcodeDate Abus AddressCity State Postcode Dear Abu Re Advice on Visa Cancellation under Section 5013A of the Migration Act 1958 Cth I hope this letter finds ... View the full answer