Describe about the Migration Law for Case Study of Category.
To,
Billy Elliot,
Tasmania.
Dear Billy,
As you are originally a citizen of New Zealand and you are residing in Australia on a visa of Special category, you are considered to be an immigrant at the first instance, (Legislation, 2016). From the case itself it is clear that you came to Australia on a visa of special category at the age of 21 and residing in Australia since then. But then it also cannot be denied that you went to a local pub with few of your workmate to have beer on your 36th birthday. You were drunk and on the way back home, you without any intention drove over four teenagers who were returning from a party in an intoxicated state, due to which three of them died and one is badly injured. This made you caught by the police who found you guilty of driving under influence and driving causing death. In the meantime Sally Fields also complained about you molesting his daughter Emily. Even after your several pleadings before the court, you are sentenced to imprisonment for 5 years.
To face the situation you need to know the legislation of the Australia which can help you and is applicable in your case, (Lawnotes, 2016). As you are an immigrant, you will be guided by the Migration Act, 1958. Section 201 of this act states that a person being a non-citizen has committed an offence and is convicted in Australia for the same after the commencement of this section will be deported back. In your case, as you was a citizen of New Zealand and came to Australia with a Special category, therefore, it has been mentioned in this section that any person who used to be a citizen of New Zealand and is in Australia as a special category visa holder, he shall be deport back to his own place for committing an offence after calculating his stay in Australia which has to be less than 10 years. Another condition is that the punishment granted for the offence should be life imprisonment or death or imprisonment for a period not less than one year, (Law, 2016).
The section 501 of the Migration Act, 1958 has some provisions with which the Minister may deport you back to your place, (Anao, 2016). The section states that if the Minister is not satisfied that a person has passed the character test, the Minister may cancel the visa that has already been granted or refuse the visa. In this regard, the meaning of the character test is very important. It means that the person is required not to have any criminal background or should not commit any offence at the time when he is already convicted of any small offence and also should not try to escape from the detention. The person should not be convicted of any offence which works against the section 197A. The Minister should not think or suspect the person to be associated with any such groups which is suspected to be involved in any kind of criminal work. The person should not harm or harass any person or community of Australia, (australia-migration, 2016). The Minister should not suspect the person to be a threat for the nation. The criminal record of a person means that the person should not be convicted of any offence in which he is granted a sentence to death or life imprisonment, imprisonment for a term of 12 months or more or if he is acquitted of an offence on the ground of insanity or unsoundness of mind, and for which the person concerned has been detained in any institution. If a person satisfies all this point, he is eligible to pass the character test. If the Minister is not satisfied that the person is not eligible or suitable to pass the character or test or has not passed the character test according to the Minister, the Minister may cancel the visa that has already been granted to the person or may refuse to grant a visa to the person. The satisfaction of the Minister depends upon himself. It is completely his own decision and is not influenced by any other person. In this section there is no application of the natural justice. The power of executing this power by the minister is completely personal and is not influenced by any delegate. The decision made under this section by the minister cannot be reviewed.
With respect to the section 201 of the Migration Act, you can take a plea that you have been residing in Australia for almost 16 years which is more than 10 years prescribed in this section and is not applicable for you. You can also take a plea that at the time of committing the offence you were not in a proper state of mind and was driving under influence, which itself cannot constitute any offence. The very next plea that you should take is that if you have molested a child for a so long period then they should have complained about it before. There is no reason for complaining when you are already convicted of an offence. And with respect to section 501, you can take a plea that you do not possess any kind of criminal record since the time you are staying in Australia and you have a record of good behavior and character in your work place and locality. You were not convicted for any offence before. You were not sentenced to death or imprisonment for life or for imprisonment for a term for 12 months or more. This is the first time all this thing happened. And it has not been done intentionally. This happened at the time of returning from the pub on the 36th birthday. If all this points satisfies the Minister, he may not deport you back to your place. But if he is not satisfied, he may deport you and that decision made by him cannot be changed or cannot be reviewed.
Regards,
In this case, Billy, who originally is a citizen of New Zealand, has been living in Australia since the last 15 years. He came to Australia at the age of 21 on a Special category visa and has been working in Tasmanian gold mine since then. On his 36th birthday he went to the local pub and had beer with few of his workmates. On the way back to home, he unintentionally drove his car on four teenagers who were drunk and were returning from a party. Amongst them three died and one was seriously injured. Billy was caught by the police and charged of dangerous driving which cause death and driving under influence, which means in a drunken state of mind. Later he was also charged of molesting a girl called Emily whose report has been made by Sally Field, the father of the child. Billy was found guilty of both driving offence and child sex and was sentenced to five years of imprisonment by the court. Some of his workmate has told him that he might get deported back to New Zealand by the Minister because of this happening which left him worried.
The Minister after becoming aware of the case may take decision according to the provisions mentioned in section 501, 501A & 501B of the Migration Act, 1958, (AUSTLII, 2016).
Section 501 mentions about the cancellation or refusal of the visa on the grounds of character,. The section states that the Minister can cancel or refuse to grant a visa if the person is not able to make the minister satisfy by passing the character test. Character test means that the person should not have any criminal record or he should not been convicted of any criminal offence while he was convicted of a small offence or tried to escape from that detention, (Comlaw, 2016). The person should also not be convicted of any offence in contrast to sec.197A or should not be found associated with any organization which is suspected to be involved in any kind of criminal activity. The person should not harm any person or community of Australia, (Lawnotes, 2016). If a person satisfies all these terms, he passes the character test. A visa may be cancelled by the minister that has been granted to person anytime if the minister has a doubt or is somehow not satisfied that the person has not passed the character test, (Immi-to-australia, 2016). The cancellation may also be done if the minister thinks it to be for the national interest. There is no application of the natural justice, (Alrc, 2016).
The setting aside of the cancellation or refusal of the visa and the substitution of the decision under section 501(1) or (2) of the Migration Act, 1958 has been mentioned in section 501A, (Humanrights, 2016). The delegate of the minister may take a decision of not to execute the power of refusal of granting a visa to the person and of cancelling the same which has been given in subsection (1) & (2) of section 501 respectively even if the delegate is not satisfied by the person that he has passed the character test. There is an application of natural justice in this section, (ILO, 2016). This decision is termed as original decision. The minister can set aside the original decision of granting the visa or cancel the visa that has already been granted to the person if the minister is not satisfied and doubts that the character test has not been passed by that person and if the Minister founds that the cancellation is for the national interest. The rule of natural justice does not apply in this case, (Visaaustralia, 2016). This is the power that has to be executed by the Minister personally. Whether to consider the execution of power of not granting a visa or cancelling the same depends on the Minister. The minister is not bound to consider any request or situation. Any decision made under this section is not reviewable, which means no one can ask the Minister to reconsider the decision made by him.
The cancellation or refusal of the visa or setting aside of the same and the substitution or replacement of any unsuitable decision under subsection (1) & (2) of section 501 has been mentioned in section 501B of the Migration Act, (Stephanie, 2014). The provision made under this section states and applies to the situation that if any delegate of the Minister makes any decision which is said to be original decision for the cancellation of the visa that has already been granted to the person, the original decision made by the delegate may be set aside by the Minister and he may refuse the granting of the visa or may cancel the visa that has already been granted to the person, if he is not satisfied that the person has passed the character test. Any decision mentioned in the provision of this section is not reviewable, (Apo, 2016). Even if the original decision can be reviewed by the Administrative Appeals Tribunal by giving an application, the Minister can set aside the same.
With reference to this case, it can be said that the Minister can cancel Billy’s visa on the ground that Billy did not pass the character test which includes the criminal offence, if any, made by him or something like harassing any person of Australia, involvement in any association which can cause threat to the nation, etc. and Billy cannot satisfy him in any manner. There is no such way by which Billy can go for review against the decision made by the Minister. He can make an application to the Administrative Appeals Tribunal for the review of the original decision made by a delegate under subsection (5) of section 501B of the Migration Act, 1958 but if not satisfied personally, the Minister is not bound to go by the review and may set aside the same, (Usq, 2016).
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