Legal Research Memorandum

Question: Discuss about theLegal Research Memorandum. Answer: Introduction To: Walter White From: Agent Date: September 25, 2016 Re: Firm Director Issues The major issue in this case is whether Walter can undertake the work of his cousin as per the Class FA Visitor (Subclass 600) granted to him, on the conditions stated in 8101, 8201, 8503 and 8531. Legislation The lawful entry and stay of a non-citizen in Australia is governed by the principles stated in the Migration Act, 1958[1]. The Regulations contains the procedures and criteria which have to be met by the non-citizens. The administration of this Act is done by the Commonwealth Department and the administration of the Regulations is done by the Department of Immigration and Multicultural Affairs. The Department has produced the guidance for policy in accompanying documents to the Act and the Regulations which are known as the PAM3 (Procedure Advice Manual) and the MSIs (Migration Series Instructions)[2]. The visa under subclass 600 is granted to such applicants, who apply for a Business Visitor steam visa. Such applicants have to fulfill the primary criteria stated in Subdivisions 600.21 and 600.24[3]. In this case, the Class FA Visitor (Subclass 600) was granted with certain conditions[4]. These conditions were, 8101, which states that the holder of such visa should not engage in work in Australia. The condition stated in 8201 contains, that the holder of such visa should not be engaged in any sort of training or studies for more than a period of 3 months, after entering Australia. The conditions stated in 8503 states that once the holder enters the country, such holder would not be entitled to a grant of any substantive visa, till the time such holder is in Australia. This condition is not applicable for a protection visa. Lastly, the 8531 condition prohibits a holder of such visa from staying in Australia, after the end of the permitted period of stay. The regulation 1.03 of the Migration Act, 1958[5], defines work as an activity which normally attracts remuneration in Australia. As per the Section 116 of this Act, the Minister has the power to cancel a visa if the Minister is satisfied that the holder of visa has failed to comply with the conditions of the visa[6], among the other provisions. Section 245AG of the Migration Act, 1958[7], contains the provisions regarding the meaning of work and allows to work. As per subsection 1 of this section[8], work means any sort of work whether it is done for a reward or otherwise. Further, the subsection 2[9] provides that, a person allows other person to work, only if one person employs or engages the other person, as per a contract of service, other than in a domestic context. In the case of Amandeep v Minister for Immigration Anor[10], the Court relied on the definition of work given in Regulation 1.03. The Court also relied on the test regarding the activity which is performed by an individual and whether such activity normally attracts remuneration, in the country (Australia). The Court also relied on the context of assistance which was provided in terms of social, commercial, altruistic motivations or domestic. The Court held that the applicant was indeed working and hence, the application was dismissed with costs. Application In the present case, the work which Walter wants to undertake for his cousin is commercial in nature. As per the conditions of his visa, 8101, he is prohibited from engaging in work in Australia. Further, as per the definition of work given in the Regulation 1.03, as well as the interpretation of the Court in the case of Amandeep v Minister for Immigration Anor, the activity proposed to be undertaken by Walter is covered under work as such work attracts remuneration in Australia. Also, his cousin wants to employ Walter as a contractor, which clearly infers the activity as work. So, it is advisable to Walter, to not engage in the activity of building a deck and landscaping for his cousin, as this would be considered as work and his Visa may get cancelled, as a result of engaging in such activity. Conclusion So, it can be concluded that Walter should refrain from providing the services to his cousin, Jesse Pink; otherwise his visa may be cancelled by the Minister for a failure to comply with the conditions, while grant of the Class FA Visitor (Subclass 600) visa. References Cases Amandeep v Minister for Immigration Anor [2011] FMCA 757 (30 September 2011) Legislation Migration Act, 1958 Migration Regulations, 1994 Migration Amendment Regulation, 2013 Other Fair Work Ombudsman, Australian Government, Migration Regulations, 1994 2010 https://www.fairwork.gov.au/ArticleDocuments/757/Fair-Work-Ombudsman-v-Centennial-Financial-Services-Ors.pdf.aspx