BLO5607 Visa Compliance - Cancellations and Review Assignment

Prepare a letter of opinion for Emily as to your proposed response to the Notice of Intention to Consider Refusal under s.501(1) of the Migration Act.

You should address:

(i) the consequences in the event that the visa is refused, including any review rights and bridging visa issues; and
(ii) the probability of success in this instance.

You must address the character test and its requirements in the context of the scenario 

Answer 

To,  

Emily Goh, 

Subject: suggestions on visa refusal under Section 501(1) of the Migration Act 1958:

Mam,

For valid visa approval in Australia, any applicant who wants to enter or stay in Australia must fulfil the requirements defined by character test stated in Section 501 of the Migration Act 1958. Liability stated under character test also fulfilled by some other persons also such as non-citizens of Australia, person who sponsor the visa applicants, and also the family members of Australian Citizen who wants to make entry in Australia. It is necessary for every person who wants to stay in Australia that they must follow the law of Australia and they must clear the character test. 

According to Section 501 of the Act, application made by applicant can be refused by the minister if that applicant does not fulfil the requirements stated under character test, and for the purpose of this section character test is defined under Subsection 6 of the section 501 of the Migration Act. However, this section also imposed power under minister to refuse or cancel the application made by person if there is sufficient reason for minister to suspect that requirements stated under character test are not fulfilled by the person or it is completely in national interest the refuse or cancel the visa of the person. 

If visa applicant face any conviction which is criminal in nature either inside or outside Australia then it is necessary that applicant must disclose that conviction to the department and this obligation is applicable for any visa applied by Applicant. Police certificates must be submitted by applicant for the purpose of assessment, and if applicant does not satisfy this requirement then department can refuse or cancel the visa application of the person. Failure of character test is he strong ground and on the basis of this ground both Department of immigration and minister has power to refuse or cancel the visa of the person, but minister also have power to allowed the visa application of the person even applicant does not fulfil the requirements stated under character test. It must be noted that this decision is taken after evaluating all the circumstances, and it is a discretionary power imposed under minister and department.

Visa of the person must be cancelled by minister or department if any visa holder already serves the custodial sentence of full time or that person have ever been get imprisonment for the period of 12 months or more, no matter for how much period person actually served or convicted for the offence. Visa of person is also cancelled if such person is found guilty under any offence which is related to sexual assault with child. Applicant can make the request for the revocation of decision related to visa cancellation made by minister within 28 days of decision. If department receive any request for the revocation of decision related to mandatory cancellation of visa, then before making revocation department consider all the circumstances.

As stated above, character test stated under Section 501(6) of the Act for the purpose of approving the application made by person for granting visa. Character test requirements are not satisfied by person if:

There is any substantial criminal record of such person or if that person escaped from immigration detention and has been convicted for that, or person has been convicted for committing an offence during the period of immigration detention, and after he escaped from immigration detention but before he taken again into detention.

Such applicant is associated or become the member of any group or organization which minister suspects involved in criminal conduct.

In case minister reasonably suspect that conduct of person involves human trafficking, smuggling, crime related to war, genocide, crime against humanity, torture or slavery, and any issue which is considered as crime and discussed at international level then such person does not qualify character test. It must be noted that person does not qualify character test even though he does not convicted for such crime.

If any conduct of person related to his past or presence shows that person does not possess good character, and if minister suspect that while being in Australia person can engage in any conduct which is of criminal nature and involves harassment, molestation, stalking, or such person vilify any specific sector of community of Australia or there is any danger caused to Australian community.

If applicant of visa found guilty under any offence which is related to sexual assault against the child.

In case any security assessment which is of adverse nature is conducted by the Australian Security Intelligence Organisation against the applicant, or notice which state that person is directly or directly cause danger to Australian community or any part by INTERPOL. 

Substantial criminal record in case of visa applicant for this section is based on the time period of sentence stated by Court of Law, and it does not base on that period which is spent by person in prison. In case sentence of death or life imprisonment is issued by the Court of Law, Court of Law provide sentence of imprisonment for 12 months or more, Court of Law provide sentence of imprisonment for two or more terms no matter whether those terms are served on concurrent basis then in such cases it is considered that person has substantial criminal record. Substantial criminal record also includes cases in which Court founds that person is not fit for plead which is related to any offence and as a result have been obtained in facility or institution.  

In this case, immigration department issue notice to Emily, and in this notice they intend to refuse the application made by Emily for granting the Visa on the ground of section 501(1) of the Migration Act 1958. Emily submit the clearance report issued by Malaysian Police and under this report police stated that Emily has past record of conviction of almost 9 years ago for Shoplifting a handbag in Kuala Lumpur, and the cost of that bag was Malaysian Ringgit 3,000 (AUD 1,000 approx), and for this offence Court of law issue sentence of imprisonment for the period of 13 months. Therefore, Emily does not fulfil the character test requirements and she has substantial criminal record, and because of this minister can refuse the application made by Emily.

Consequences of cancellation and refusal of Visa application- as soon as visa granted to person is cancelled by the minister or department then person is become the unlawful citizen of Australia, and such person is held in immigration detention. Consequences of cancellation are more severe such as if visa of person is cancelled on the ground of section 501 of the Act then person is banned in Australia and he cannot apply for any other visa for the purpose of staying in Australia, and department also ensure that they cancel any other visa of the person so that they can exclude the person on permanent basis from Australia. There are some additional consequences also after the cancellation of visa that is if person is resident in Australia then they may be transferred in such country in which they hardly ever lived or never lived or country in which they does not know the language and they do not have any connections, and these residents also face separation from their families and friends.

For the purpose of cancelling the visa of person, DIAC does not primarily consider the duration of stay of person in Australia, but department take some other factors into consideration such as age of the person who holds the visa, effect of cancellation of visa on family members, and department also take into account the person’s age at the time of arrival in Australia, but duration of stay is not considered by the department. According to the ombudsman of commonwealth, original intention of section 501 is not met because of the use of this section for cancellation of long term resident visa. Therefore, this use of Section 501 is not explained in the explanatory memorandum or provision of the Act.  

Review of decision made by minister under section 501(1)- it is possible to review the decision made for cancelling the visa under this section but review of decision is based on the authority who made this decision such as decision made by the delegate of the minister that is DIAC or by the minister itself.  In case DIAC pass the decision of cancellation of visa then this decision is reviewed by the Administrative Appeals Tribunal (‘AAT’), but AAT does not review the decision if it is made by minister personally. This general rule has one exception also which state that decision related to cancellation of visa under section 501 made by minister can also be reviewed by the Federal Court and High Court. However, it must be noted that Federal Court and High Court can review the decision made by minister only in case when there is any error of law. Therefore, review of decision by Court on the basis of error in facts of the case is not possible. 

Minister also has power imposed by section 501 of the Act that in case of some particular situations minister can initially decide to refuse or cancel the visa of the person, or to set aside any decision made by DIAC officer and AAT for not cancelling the visa of the person and minister can overrule the decision made by DIAC and AAT with his own decision by refusing the application and cancel the visa of the person. Minister also has power to set aside the decision of DIAC officer related to refusal or cancellation of visa. However, Direction 55 is not applicable on the decisions made by minister and it is not possible for person to apply to AAT on the grounds of merits review related to any decision made by minister. Therefore, as stated person can only challenge the decision on the basis of legality of the decision otherwise not. Numbers of cases are there in which Act clarified that natural justice rule is not applied in minister’s decision so that they can limit the review potential on decision made by minister. 

Government stated after reviewing the interference in the personal rights of the consumer that is visa applicant or holder because of refusal or cancellation visa on the basis of character test that power imposed under minister is very broad in nature and therefore it is necessary to review the decision made by minister. 

Person can apply for review through one more way that is Discretionary powers and Ministerial Direction 65. In these ways if person does not fulfill obligations of character test then also minister has power to grant the visa to the person. Making this decision includes the determination of number of factors such as Australian community protection, effect on minor children stayed in Australia in case of refusal or cancellation of visa, effect on interest of business and also on the community of Australia if that business is cancelled. This discretionary power is imposed by Ministerial Direction 65 made under section 499 of the Act.

Therefore, in this case, Emily can file the review application under direction 65 on the basis of child’s health and effect on business interest conducted by Emily in Australia.  

Bibliography 

Websites 

AHRC, ‘Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act’, < https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1>. 

DIBP, ‘Direction 65’, < https://www.border.gov.au/visas/Documents/ministerial-direction-65.pdf>. 

DIBP,’ Fact Sheet - The Character Requirement’, <https://www.border.gov.au/about/corporate/information/fact-sheets/79character>. 

Legal service commission of Australia,’ Visa cancellations under section 501 (character grounds)’, < https://www.lawhandbook.sa.gov.au/ch24s01s07s01.php>. 

Refworld, ‘Background Paper: Immigration detention and visa cancellation under section 501 of the Migration Act’, (2009) < https://www.refworld.org/pdfid/4a2e35462.pdf>. 

The Australian institute,’ The Dangers of Character Tests’, < https://www.tai.org.au/sites/defualt/files/DP101_7.pdf>.  

Reports

Human Rights and Equal Opportunity Commission, note 58, paras 104-107. 

Statute

Migration Act 1958