1.Advise Sione what legal effect his removal from Australia will have for him in light of Schedule 5 of the Migration Regulations 1994 (Cth)?
2.Given Sione’s explanation for ticking “noâ€Â to the question related to criminal convictions on his visa application, will Sione satisfy Public Interest Criteria 4020?
3.Assuming Sione has little money and has still not paid the $25,000 debt, what advice would you give to Sione in relation to this matter?
Title of this assignment is Legal Effect of Australian Immigration Provisions.
1.Certain provisions of the Migration law are included in this part. The main provision is the schedule 5 of Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017[1]. This provision is dealing with visa related problem of a New Zealand citizen and containing certain provision regarding special return criteria. According to this provision, the New Zealand citizen should meet the criteria provided under section 7 of the Social Securities Act 1991. It has been observed from the case that Sione is a citizen of New Zealand and holder of sub-class 444 visa. The nature of this visa is temporary and it is granted for certain period of time and the purpose of this visa is to allow the visa holder to implement the right to work or study in Australia. There are certain eligibility criteria stated under the Sub-class 444 and the applicant must have to meet the same. One of the most expectable grounds is that the holder should have to pass the character requirement. This means, the applicant should not indulge himself in any criminal activities and should have a valid New Zealand passport. However, it is to be mentioned that Schedule 5 of the Migration Regulation is dealing with the eligible New Zealand citizen. The term eligible denotes that the applicant should have to hold a special category visa. The term protected SCV holder is prescribed under section 7 (2A) of the Social Securities Act 1991. A person who was present in Australia on 26 the day of February 2001 is called as protected SCV holder. Sione was in Australia from 1987 to 2016 and therefore, he is an SCV visa holder. However, it has been learnt from the case that Sione had been charged for supplying illegal drugs in Australia and was imprisoned for twelve months. He was compelled to leave Australia for his visa cancellation. The provision of visa cancellation has been engraved under section 501 of Migration Act 1958. The immigration minister can cancel the visa on certain ground. It has been stated under section 501 (1) and section 501 (2) that if the applicant or the visa holder could not pass the character test and the minister is quite unsatisfied regarding his or her character potentiality. The visa of a person can be cancelled if the minister is satisfied that the national interest of the country can be get affected by that person. Certain points have been stated under section 501 (7) of the Act regarding the character test. It is required that the applicant has no substantial criminal record. Substantial criminal record means the person must not be imprisoned for a term of 12 months or should not be charged for life time imprisonment or sentenced for two or more terms of imprisonment[2]. Further, it has been stated under this section that if the person is suspected to engage in criminal conduct, visa of that person will be cancelled. In this given case, it has been observed that Sione had been charged for drug peddling and got imprisonment for a period of twelve months and his visa was cancelled due to this. Therefore, it can be stated that he had met all the requirements mentioned under section 501 of the Migration Act 1958 (Cth). Further it has been observed that the visa holder had remained in jail for twelve months. The offence for which he got the imprisonment is also grave in nature. Therefore, his visa was cancelled under reasonable ground. Drug peddling is a serious crime in Australia and the peddlers are treated as a threat against the national security. It has also been observed that Sione was held liable for additional two times and it is clear that he had failed to pass the character test as a whole. The minister is responsible to protect the Australian from any offensive acts and all the power he exercised under section 501 are given to him by section 499 of the Migration Act 1958[3].
However, certain conditions have been stated under the schedule 5 of Migration Regulation for a person whose visa is cancelled under section 501 of the Migration Act 1958. It is advised to Sione that he must not apply for another visa in which Special Return Criterion 5001 is applicable. It is also been advised to him that he may apply for another visa or may return to the Australia if the mandatory cancellation of his visa can be revoked. Sione is also advised to mention any legitimate purpose for applying for visa for the provision of Human Rights (Parliamentary Scrutiny) Act 2011[4]. The visa of Sione has been cancelled mandatorily under section 501 (3A) of the Act. However, Sione can apply for another sub-class 444 visa as it is stated under 5.15 A of the Migration (Amendment) Regulation that a person is not prohibited to apply for a sub-class visa if it has been cancelled under section 501 (3A) of the Migration Act[5].
2.In this given case, it has been observed that Sione has ticked the no option in respect of the question whether he has any criminal record in Australia or not. This step of him has come under the purview of Public Interest Criterion 4020[6]. It is to be decided whether the application of Sione has attracted the provision of this criterion or not. A visa can be cancelled if the applicant had made any false statement in the application or has submitted any false document with the application. The criterion can be applied on the skilled migration visa, business or student visa, temporary visa and family visa[7]. According to the main objective of the visa, an applicant must have to provide a clear statement regarding his identification. If the applicant becomes unable to satisfy the criteria mentioned under this provision, he or in case his family members had done any mistake regarding the same, that particular member will have to face fine for non-fulfilment of proper criterion. It has been mentioned under this provision that the applicant may be prohibited for ten years to apply for any visa. On the other hand, it has been observed that if the applicant or any of his family members has provided any misleading document, the applicant will be restricted to make further visa application for three years. In case of Sione, it has been observed that his visa was cancelled under section 501 (3A) of the Migration Act 1958. He was caught for peddling prohibited drugs and was imprisoned for a period of twelve months. Therefore, he has a substantial criminal record and his visa was cancelled on mandatory basis. However, when he had attempted to apply for another visa, he had given certain misstatements in the application. It has been observed that he had stated that he had no criminal liability. By this statement, it is clear that he had met the criteria under the Public Interest Criterion 4020. He had not only hidden the fact regarding his conviction for drug peddling, but had been convicted previously for two more offences. Therefore, it is obvious to state that he had been guilty for making misleading and false statement in the visa application form.
However, it can be advised to him that he has certain options in this case. He can get certain reasonable times to justify his options and can narrate the reasons for making such decision or misstatement in the form[8]. Further, he will get a review option so that he goes before the Migration Review Tribunal. However, this option is only available in case the visa application has been cancelled[9]
3.All the visa related matters in Australia are governed by the Migration Act 1958 and Migration Regulation 1994 (Cth). An applicant should have to comply with all the information stated in these provisions and a person can be prohibited from applying other visa in case of non-fulfilment of those provisions[10]. In this given case, it has been observed that Sione was caught for supplying illegal drugs and sent for twelve months imprisonment for the same. After that, he had made an appeal in the court where the application was cancelled and the court had imposed a certain fine on him in the form of legal cost. However, it has been observed that he had returned to New Zealand and his visa was cancelled subsequently.
There are certain rights provided under the Legal Profession Regulation 2009 that are provided to the persons or individual as against the legal cost. In case, Sione has no money to meet the payment and he could not able to pay the debt, two issues will be cropped up regarding the same. the first issue is whether he will be restricted to make any application for visa and the second issue is whether he has any right to deal with the matter or not.
Failure to pay the legal cost relating to criminal offence is a crime in Australia. Therefore, it is required to pay the debts and legal cost properly. Further, it has been stated that if a person could not able to pay the fine imposed on him or if he has been convicted under any criminal offence, he will be restricted to hold any Special Category Visa any more. In addition, he has to seek permission from the Department of Immigration and Border Protection for further application for visa[11].
However, he has certain rights too that can be exercised in case of non-payment of legal cost. He can make an appeal to the Department of Immigration and Border Protection for narrating his condition and reason for non-payment. He may get an option to negotiate with the department so that they can reduce the liability by considering the present status of the individual (in this case Sione). Further, he will get an opportunity to express his content before the Migration Court and he has to make the statement in writing. According to section 291 of the Legal Profession Regulation 2009, the person will get a notice from the authority where the defence statements are prescribed in a systematic way. He can opted for cost assessment, however, it is the discretionary power of the authority whether they can reduce the amount or retain the same. According to section 288 of the Legal Profession Regulation 2009, Sione may request for setting aside the order for cost and if he can properly satisfy the authority, his prayer can be accepted and he has not to pay a single penny for that. Sione has no problem to make an application for sub-class 444 visas again, but he has to contact with the authority for reducing the payment by showing reasonable cause[12].
References
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Bradley, Curtis A., and Jack L. Goldsmith. Foreign Relations Law: Cases and Materials. Wolters Kluwer law & business, 2017.
Graber, Doris A., and Johanna Dunaway. Mass media and American politics. Cq Press, 2017.
Ozyurek, Sherene, and Rodger Fernandez. “Combatting fraud as a disincentive of an unintended economic migrant: A comparative review of the direct Turkish model and the indirect Australian model.” Border Crossing 6.1 (2016): 16-26.
Gillers, Stephen, et al. Regulation of Lawyers: Statutes and Standards, 2017 Supplement. Wolters Kluwer Law & Business, 2016.
Jacobson, Chris, et al. “Mainstreaming indigenous perspectives: 25 years of New Zealand’s Resource Management Act.” (2016): 331-337.
Farbenblum, Bassina, and Laurie Berg. “Migrant workers’ access to remedy for exploitation in Australia: the role of the national Fair Work Ombudsman.” Australian Journal of Human Rights (2017): 1-22.
Newbold, Greg. Crime, law and justice in New Zealand. Routledge, 2016
Tham, Joo-Cheong, Iain Campbell, and Martina Boese. “Why is Labour Protection for Temporary Migrant Workers so Fraught? A Perspective from Australia.” (2016).
Faulkner, David. “Discrimination Based on SCV Holder Immigration Status: The Systemic Removal of Rights from New Zealanders in Australia.” Browser Download This Paper(2015).
Williams, George, and Daniel Reynolds. “The operation and impact of Australia’s parliamentary scrutiny regime for human rights.” Monash UL Rev. 41 (2015): 469.
Williams, George, and Daniel Reynolds. “The operation and impact of Australia’s parliamentary scrutiny regime for human rights.” Monash UL Rev. 41 (2015): 469
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