Discuss about the Migration Law for Intention to Consider Cancellation.
There are several provisions which are provided by the Migration Act 1958 (cth) towards governing the authenticity of information which is provided by a person for making a visa application. These provisions are provided through section 101-105 of the Act. Further it has been provided by section 107 of the CA that the minister has the right to issue a Notice of Intention to Consider Cancellation (NOICC) to any person who is believed to have found to violate the provisions of section 101-105 of the Act[1]. It has been specifically provided by the provisions of section 101(b) of the Act that a visa applicant while providing information in the visa form must ensure that the information which is provided is genuine and correct[2]. It has been provided by the scenario that the Non-citizen who currently holds a Subclass 866 protection visa has visited Iran twice for a period of two months after the grant of the protection visa. With respect to the information provided by the non-citizen for the protection visa it was stated that if he returns to Iraq again his life would be at risk as he had been threatened on various occasions by terrorists and had not been provided with adequate support for the local police. However the holder has returned safely from his visit on both occasions. This situation makes it clear to the minister that the incorrect information had been provided by the Non citizen which is a breach of section 101(B) and thus for this a NOICC can be issued under section 107 of the Act.
A NOICC which has been provided under the rules of section 107 of the Act has to be made in a valid manner. One of the recent cases which deal with the matter in relation validity of NOICC is the case of Zhong v Minister for Immigration and Citizenship[3]. The issue before the court in this case was to determine the situation and way in which a NOICC has to be made by the department. It had been stated by judges in this case that the NOICC sent pursuant to section 107 must assert the specific section which has been violated by the holder of a visa. It had also been ruled by the case that the notice has to be specific and particularized. The notice must also be sent only when it has been concluded by the delegate that a provision of the Act has not been complied with by the visa holder. In this case the NOICC which had been issued by the minister only contained the allegation that the holder has violated the provisions of section 101 of the Act. However the court held that in order for the notice to be valid under the provisions of section 107 of the Act it had to particularly state that the provisions of section 101(b) have been violated any the visa holder.
It has been provided through the scenario that the NOICC which has been provided to the non-citizen has specifically stated that the defendant has particularly violated the rules under section 101(b) of the Act. The reason for the violation has also been provided by the NOICC that the non citizen had stated in interview for the protection visa that if he returns to Iraq again his life would be at risk as he had been threatened on various occasions by terrorists and had not been provided with adequate support for the local police. The Non-citizen who currently holds a Subclass 866 protection visa has visited Iran twice for a period of two months after the grant of the protection visa. However the holder has returned safely from his visit on both occasions. This situation makes it clear to the minister that the incorrect information had been provided by the Non citizen which is a breach of section 101(B). Section 107 states that the minister has the right to issue a Notice of Intention to Consider Cancellation (NOICC) to any person who is believed to have found to violate the provisions of section 101-105 of the Act. The notice has also provided a chance to the non citizen to dispute the non-compliance which has been alleged which meets the requirements set out under Subsection 107(1)(i) of the Act. The NOICC had also asked the holder to provide evidence that why the minister should not cancel their visa which meets the requirement provided through 107(1)(i)(b)[4]. There is also some specific information which the NOICC must contain such as, it must specify the time within which the response is to be made by the visa holder and the time has to be of 14 days or a reasonable time depending upon the visa. The notice must also make the holder aware that their obligations under the provision of 104 and 105 of the Act will not have any affect because of the notice. The effect which the provisions of section 108, 109, 111 and 112 will have in relation to the notice also has to be communicated to the visa holder. The consequences which the visa holder will face of he or she does not respond to the notice must also be provided through the NOICC. Further the visa holder has to be informed through the NOICC that they cannot provide any information which is incorrect while providing a response in relation to the section 107(1)(b) of the Act.
The notice has clearly mentioned the circumstances which the minister considers to have violated the rules provided through section 101(b) of the Act. The notice has also asked for response from the visa holder. The particular information which has been provided in an incorrect manner referred to as questions 42-45 in NOICC has also been provided. Therefore after taking into consideration the requirements of a valid notice under section 107 of the Act and the provisions provided by the Zhong v Minister for Immigration case it can be stated that a valid notice has been provided by the Minister.
Where a valid NOICC has been made by the minister it does not mean that the decision which has been taken after the consideration of the response is a legally correct decision. The decision f the minister in relation to the cancellation of visa after providing the NOICC can be challenged as it was done successfully in the case of Vata v Minister for Immigration & Anor[5].
Section 109 of the MA provides discretionary powers to the minister for cancelling the visa of a person. This means that the visa of the person may be cancelled by minister based on his own discretion by complying with the provisions of section 109 of the Act. This has also been confirmed by the provisions of Zhao v MIMA[6].
It has been provided through the rules of section 109 of the Act that the minister may cancel the visa of a person where it is found that incorrect information has been provided by the visa holder while the application of the visa had been made. It is further added by the rules under subsection 109(1) that the minster after considering pursuant to the provisions of section 108, the reply provided by the visa holder in relation to section 107(1)(b) may cancel the visa if the minister is satisfied that the non compliance as stated in the NOICC has been made by the holder. It has further been provided by subsection 109(1)(c) of the Act that the minister while analyzing the response under section 107(1)(b) has to also take into account specific circumstances[7]. These circumstances are provided under reg. 2.41 of the Migration Regulations 1994 (Cth). The regulation states that the minster has take into consideration the extent to which correct information has been provided, the authenticity of the content of thee documents, incorrect decision while the visa was provided, the circumstances of the non-compliance, the status quo of the visa holder, subsequent behavior of the visa holder, previous non-compliance, time passed after non compliance and breach of law by the visa holder[8].
The situation states that Fadhil Hamdani who is described as a visa holder in the given situation is holding a protection visa. The protection visa had been provided to the visa holder based in the information which had been provided by him to the department. In relation to getting the visa he has stated the department that if he returns to Iraq again his life would be at risk as he had been threatened on various occasions by terrorists and had not been provided with adequate support for the local police. This is because he had been working for the US military and had been provided threat that if he does not leave the job he will be killed. In relation to the threat the car and house of the visa holder has also been alleged burnt by the terrorist and relevant evidence in support of the information has also been provided. While the protection visa was granted the department was satisfied that the visa holder had provided correct information. In order to show that the information provided by the holder was incorrect within the meaning of section 101(b) of the MA the minister has relied on the fact that The Non-citizen who currently holds a Subclass 866 protection visa has visited Iran twice for a period of two months after the grant of the protection visa. However the holder has returned safely from his visit on both occasions. The creates an evident contradiction between the information provided during the allocation of protection visa and the present situation of the holder which needs to be considered under the provisions of reg 2.41 of the MR. In response to the NOICC the holder has replied that he visited his home country in situation where his mother was admitted to hospital and where he had to marry his present wife. The holder has also supplied proof regarding the hospitalization of his mother and his wedding. It has also been provided by the holder that a very low profile wedding was conducted in Iraq. However the minister has still cancelled the visa citing the fact that the country does not have any obligation to protect the holder under the PAM3 ‘Visa Cancellation – General cancellation powers. The minister did not give any relevance to the provisions of reg 2.41 while deciding whether incorrect information had been provided or not. Thus it can be stated after analyzing the circumstances of the case that the decision of the minister that the holder has no complied with section 101(b) is not appropriate.
The Acts Interpretation Act 1901 through section 15AA states that meaning to the words of a provisions have to be provided in the light of the objective and purpose if the decision[9]. It has been provided by the rules of section 109 that the minster after considering pursuant to the provisions of section 108, the reply provided by the visa holder in relation to section 107(1)(b) may cancel the visa if the minister is satisfied that the non compliance as stated in the NOICC has been made by the holder. It has further been provided by subsection 109(1)(c) of the Act that the minister while analyzing the response under section 107(1)(b) has to also take into account specific circumstances. Further it has been stated through section 109(b) that the minister must cancel the visa where circumstances are such that any provisions of the regulation provide for the visa to be cancelled. However the MR does not provided any specific regulation under which the visa must be cancelled under section 109 of the Act. Thus the primary obligation of the minister is to pay attention to the objective of the legislation and they must consider the provisions of reg 2.41 of the MR as well as reg 2.42 which deal with general cancellations rules[10]. Thus by not taking into consideration properly the reg 2.41 and where no situation is provided under reg 2.42 to cancel the visa, the minister actually cancelled the visa the delegate did not properly apply the statutory power under section 109.
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