Migration Laws: Visa Options And Cancellation Grounds

Regional Sponsored Migration Scheme (RSMS) Subclass 187 Visas

Date

Dr. Green Brown                               

Re: Visa Options

Dear Ms Brown,

I would like to acknowledge you about the laws related to the migration that would enable you to counter with your existing circumstances.

Regional Sponsored Migration Scheme (RSMS) Subclass 187 Visas

This visa is a permanent employer sponsored visa that requires the applicant to have a job offer within a regional area of Australia.

Grounds of visa cancellations

The Minister and the DIBP is empowered to cancel the Australian Visas under the various circumstances. The grounds of visa cancellations available under the Australian Migration Act are enumerated as below:

• Incorrect information (section 109): a visa may be cancelled if the visa is obtained based on incorrect information or any erroneous document. Such visas include both permanent and temporary visas.
• General grounds (section 116): a visa may be cancelled if there is a non-compliance of the conditions under which the visa was granted.
• Regional Sponsored Employment Visas (Section 137 Q);
• Character Grounds (section 501);

1. In the existing circumstances, the relevant grounds of cancellation would be incorrect information and non-compliance with the conditions of the RSMS visa.Under section 109 of the Migration Actof the country, a visa may be cancelled if the visa holder obtains the visa by providing any erroneous document. Such visas include both permanent and temporary visas. In the existing scenario, as per the facts stated, the RSMS visa was obtained by providing false information with respect to the fact that Ms Green is no more in a relationship with her husband. This amounts to false information under section 109, which cancels permanent visa if it was obtained, based on false information.

Further, the other ground for cancellation would be the non-compliance of the terms and condition of the RSMS 187 visa under section 116 of the Act.

1. The Minister of Immigrationis empowered to cancel the visa if it is obtained by providing false or incorrect information and documents. In the given scenario, the power to cancel such visa under section 109 of the Actarises when the Department of Immigration discovers that false information was provided relating to the concealment of the relation with the husband of the Ms Green. Further, the department was also not informed about the fact that the information provided at the time of obtaining the visa are no longer correct due to change in the circumstances.
2. However, since the notice of intention to consider cancellation has been sent under section 109 of the Act on the ground of providing wrong information, the particulars of the ground of cancellation must be specified in the notice including the time limit within which the visa holder must respond to the notice.
3. When the NOICC is served if the person to whom the notice is served resides in Australia and the person wishes to re-evaluate the grounds for cancellation, the person must do so within five minutes as is stipulated under section 129 (1) (c) of the Migration Regulations 1994.   

Date

Mr. Zack Rossi                               

Re: Visa Options

Dear Mr. Rossi,

I would like to acknowledge you about the laws related to the migration that would enable you to counter with your existing circumstances.

1. Section 109 of the Migration Actstipulates that the Department of Immigrationmay terminate a visa on the ground that it was obtained by the visa holder by providing false or incorrect information relating to the visa. The visa holder has limited time to respond to the notice of intent to cancel the visa. The response must include not only the alleged ground for which the visa is being cancelled but also the other aspects of the circumstances of the visa holder must be included in the response to such notice.

Thereafter, the Minister of Multicultural and Indigenous Affairs and Immigration shall determine whether the ground mentioned in the notice is valid. However, in order to determine the validity of the ground of cancellation, the Minister shall consider the information provided by the Department of Immigration as well as any additional information that is provided by the visa holder in response to the notice of intent. Cancellation of visas is either discretionary or mandatory. If it is established that the ground of cancellation exists but it is discretionary in nature, the decision maker may take the circumstances of the visa holder into consideration while determining whether to cancel the visa or not.

According to the given scenario, the notice to intent served to Mr. Rossi under section 109 for providing false information to obtain the 457-subclass visa must be responded to immediately and must provide information about the change in the circumstances of his life. Accordingly, the Minister shall ensure if the ground is justified and if it is considered discretionary, the Minister shall take into consideration of the information provided by Mr. Rossi.

1. Section 109 cancels any permanent or temporary visa, if it is obtained by providing false information or if the visa holder fails to comply with the obligations laid down from section 100-105 of the Act. As per the facts of the case, Mr. Rossi did not inform the Department about his encounter with the police in Milan as teenager, thus failed to provide correct and complete answers while obtaining the visa (s. 101).Therefore, the ground of providing incomplete or incorrect information under section 109 of the Act is justified. However, since notice to intent served on the ground of section 109 is not mandatory in nature, therefore, the decision maker shall take into consideration any information provided by the visa holder and his circumstances while determining whether to cancel his visa.
2. the notice to intent was served on the ground that Mr. Rossi obtained the second subclass 417 Working Holiday visa without completing any regional work. The ground is irrelevant as the requirements that must be fulfilled to obtain that visa were fulfilled by Mr. Rossi. The visa requirements states that the visa holder must be less than 30 years old and Mr. Rossi is 27 years old and does not have any dependent children along with him.

Moreover, section 109 of the Act states that providing false information to obtain 457-subclass visa is a valid ground to cancel the same. However, the notice states that Mr. Rossi has infringed section 101 of the Act as he failed to provide the Department with complete and correct information relating to his encounter with police in Milan when he was a teenager. However, as per the facts of the case, Mr. Rossi did not have any criminal record because he was never asked to appear before the court owing to his appointment with psychiatrist and a difficult family background.

Moreover, notice of intent to consider cancellation of visa under section 109 of the Migration Act is discretionary; hence, the decision maker shall take the circumstances and the responses of the Mr. Rossi while determining whether to terminate the visa. According to section 129 (1) (c) of the Migration Regulation, any applicant who wishes the Department to reconsider their cancellation ground shall response to the notice within 5 minutes if such person is in Australia when the notice is served.

The other evidences that may be assisting this case shall include the disclosure of the fact that Mr. Rossi did not have any past criminal record to the department. Further, the information about the changes in his circumstances including his stable relationship with Gemma Simpson and that she is expecting his baby. Moreover, he has been sponsored by a major Construction Company, which implies that he fulfilled all the requirements that are required in order to be sponsored by an employer in Australia.

1. As per the changing circumstances and considering the discretionary nature of the section 109, the Minister should consider that the cancellation would affect the Mr. Rossi, his partner and the unborn child. Moreover, he did not have any criminal record, has led a positive life, and has been sponsored by an employer in a major construction company. Hence, all these are evident of the fact that he has contributed to the Australian community and does not pose any harm to the public and the society altogether.
2. However, if the DIBP did not cancel the visa under s. 109 of the Act, he may become subject to such cancellation on character grounds laid down under section 501 of the Act. If the Minister is not satisfied that the visa holder has past criminal history or have been involved in any form of criminal activity or any past criminal conduct, he shall cancel the visa. However, his power to determine whether to terminate the visa in case the visa holder does not qualify the character test is discretionary. However section 5C (2) (d)defines criminal record as when a citizen has been sentenced to more than 12 months of imprisonment. Since Mr. Rossi has not been imprisoned, the minister may consider the fact while deciding the termination of visa.

Reference list

Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership in a changing world. Brookings Institution Press, 2013.

Brettell, Caroline B., and James F. Hollifield, eds. Migration theory: Talking across disciplines. Routledge, 2014.

Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2016.

Hoang, Khanh. “Bad character: Visa cancellation on the basis of involvement in criminal conduct.” Legaldate 27.2 (2015): 7.

Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.

Larsen, Gareth. The subclass 457 visa: a quick guide. Parliamentary Library, 2013.

Legendcom (2017) Border.gov.au https://www.border.gov.au/Trav/Visa/LEGE

Oliver, Damian, and Chris F. Wright. “Australia’s shifting skills ecosystem: Contemporary challenges in education, training and immigration’.” Industrial Relations Reform: Looking to the Future, Federation Press: Sydney (2016): 163-186.

Regional Sponsored Migration Scheme Visa (Subclass 187) (2017) Border.gov.au https://www.border.gov.au/Trav/Visa-1/187-

Steen, Adam, and Victoria Peel. “Economic and Social Consequences of Changing Taxation Arrangements to Working Holiday Makers.” J. Austl. Tax’n 17 (2015): 225.

Tham, Joo-Cheong, Iain Campbell, and Martina Boese. “Why is Labour Protection for Temporary Migrant Workers so Fraught? A Perspective from Australia.” (2016).

Weber, Leanne. Policing non-citizens. Vol. 1. Routledge, 2013.

https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/

https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/

The Migration Act 1958

The Migration Regulation 1994