A Prepare your opinion about the prospects of success in relation to addressing the notice of intention to consider cancellation of his visa under section 501(2) of the migration act. What further information would you require to support the application?
Since john has been engaging with the wrong people and he has been in prison time to time, he could face mandatory visa cancellation according to the immigration laws in Australia. Section 501 of the immigration laws provides that imprisonment includes any kind of punitive detention in a facility or institution[1]. Therefore, a person on remand would not be at risk of a mandatory cancellation. However, if the person was later sentenced, and the period on remand counted as pre-sentence detention, it could be counted as part of a sentence to a period of imprisonment adding up to more than 12 months. The luck that is on John’s side is that his prison time added together does not warrant for extreme measures for his visa cancellation. The Notice lets you know that you can apply to revoke the Department’s decision. The revocation request form, along with a prepaid envelope, is sent with the Notice cancelling a person’s visa. Not much more is required other than briefly filling in the form, signing and sending it back to the Department. John should also go ahead and show the government of his improved behaviour seeing as he has a lot to lose. He needs to adhere to rules because he has a child on the way and to top it up he has ailing parents who fully depend on him[2]. However, he is still a resident though temporarily he has to meet his character test or have his visa cancelled.
The notice is an opportunity to John to contact the department and give his reasons why he should remain in Australia, he should try and show the department that he has been contributing a lot for a long time to the Australian society. In this case he may want to state his job at Toyota motors and it would be great if he got someone from work to give in a good word so he would be allowed to continue staying in Australia. He may also try to show that he has strong family connections in Australia and that he would want to stay with them. In this case it will be his ailing parents and his unborn child. John should have his girlfriend and parents vouch for him and he should also be able to show that he has actively tried to rehabilitate himself since your offence. He could first join AA to deal with his alcohol problem that seems to be the one that contributes to his bad behavior. Having a new track record could just be what gives him another chance to continue living in Australia. Therefore he should have valid supporting evidence of his contribution to the society. The immigration laws for New Zealand citizens have been amended several times[3]. This is the reason why John received the notice letter. According to John’s visa he is entitled to the same things a permanent visa holder gets but once he breaches the Australian law then he faces cancellation of his visa and is to leave Australia immediately.
A notice of intention letter means that there is consideration of your visa being cancelled and that could change a lot depending on how you deal with it. This is where John gets the chance to redeem himself. The parents could also help Johns issue seeing as they are ailing and need his support. This could be one of the ways out of the problem that he is facing. He should be able to show that the job he has and the money he makes are all for supporting his parents. The minister could look at this and give him another chance to live in Australia just for the sake of his parents. This is because if Johns was to go back to New Zealand the parents would also have to leave because they would no longer have a care system. He could also argue that his girlfriend is pregnant with his child and since she is still a student then he has to stay in Australia to become the main care giver to his child and girlfriend.
This could appeal to the minister to change his mind. John must agree to the rules he is given so that he could continue with his stay in Australia. He could also plead with them so that he could keep his job to continue to be a part of the Toyota motors family[4]. That if his visa is cancelled he would lose his job and he would not be able to support the medical finances of his parents or the unborn child. John’s initiative to want to better himself in order to continue living in Australia is what will be the biggest determiner of any decisions made.
The immigration minister will go through John’s records to see if you are a risk. He will also look into his character to see whether he is an outstanding person[5]. This is why I said earlier that John should have a good relationship with the people he works with and also the people he interacts with. This is because the minister looks into all aspects of your stay in Australia since the day you came in. john might be lucky that he has the support of the family but what his employer and the people he mostly interacts with could also determine a lot in his notice of intention issue. He should also get a lawyer that would take him and educate him on his rights in Australia with his temporary visa and what he needs to do to redeem himself.
The severities of his offences are what are looked at first, then he is given the chance to explain the background of the offences and the time between the offences he did. All this should be included in his background and the things that were going on in your life when you committed the offences. In this case it would be dealing with ailing parents and a pregnant girlfriend. It could be a lot to handle for one person and sometimes things go out of control. These are just some of the factors the immigration officers will look at while examining your case. So John should prove without a reasonable doubt that the offences he committed were not because he is a criminal but because of alcohol addiction or any other problems in his life.
It is so unfortunate for persons who find themselves in the position of having their visas cancelled on character grounds; the deck seems pretty much stacked against them. The legal grounds for challenging a visa cancellation are really quite narrow, and the rate of success in court is very low. One thing that this case illustrates is that having strong family ties to compassionate circumstances will apparently do little to insulate a visa holder against visa cancellation on character grounds. In this case, the visa holder has a job with Toyota motors, two elderly and ailing parents that he is supporting with the job and a pregnant girlfriend who is still a student in college and also need support from him. These ties did not prevent the Minister from proceeding with the cancellation. And the obvious negative impacts that the cancellation would have on his family also were not enough. John seems to be running out of options to stay in Australia. He can try and apply for a review decision and this can only be done within nine days after his visa is cancelled.
He should also get himself a lawyer to take him through the whole process. If he cannot afford a lawyer he can represent himself if he is fluent in English. He should prepare enough supporting documents to favor him[6]. Like his parents hospital documents from the doctor, supporting documents for his mental health and declaration by applicant for maintaining a strong character. These are just some of the few things he should have to strengthen his support. Having a lawyer seems like the best fit for a situation like this because they know what you need to defend yourself.
After you have lodged your appeal, immigration has 84 days to make a decision and in the mean time they may keep requiring more supportive documents to strengthen your case or just for official purposes. There will be a direction hearing first to see whether you still deserve to stay in Australia. This will be done after the officials have gone through your documents and want to see you defend yourself in court[7]. Then from there you will be given a date for the final hearing, this is where you are required to provide evidence and affidavits to continue supporting your case. This is where you get the final decision about your visa cancellation.
The decision of cancelling a person’s visa on grounds of character, the DIBP must consider the need to protect the Australian community from criminal conduct this includes the seriousness of the visa holder’s crime and likelihood of doing the offence again, any child in Australia whose best interest would be affected by cancellation of the visa, and the general expectations of the Australian community. The DIBP must also consider the strength, nature and duration of the visa holder’s ties to Australia. Other relevant factors include the visa holder’s age and health, links to country of origin, hardship to their family, and any prior warnings issued by the DIBP. So for John it is possible to appeal a visa cancellation to the Australian Administrative Tribunal. Very strict time limits apply for appeals. He just needs very strong supportive documents.
Although your John faces serious consequences if his visa is cancelled, he has the opportunity to present his case to the AAT before they make a final decision[8]. He would benefit from speaking to an immigration lawyer who can help him prepare his written response and advise him of his legal rights. Various cases have emerged in the media over the last year of non-citizens, who have families here and lived here most of the lives, being deported for a range of offenses including driving without a license and road rage. Under the new laws, the minister no longer looks at family ties or length of residency when making the cancellation decision.
Any criminal record is based on the length of a sentence imposed by a court of law, rather than the time actually spent in prison. John’s criminal record seems to be the one that could have played a big part of his visa being cancelled. When someone fails the character test, it is the duty of the Minister or his delegate to choose to accept the sponsorship or application or cancel the visa. When such a decision is being made, many factors have to be considered like parent protection, unborn child and his girlfriend. Other factors considered are Australia’s international lawful duty, visa refusal impact, a person’s family living in Australia cancellation, and any other impact like old age and illness.
AAT has strict time limit for appeals. Anyone seeking decision reviews in Australia has to apply to the immigration offices within nine days of notification. For those outside Australia, the review application should be made by a sponsor or a nominator within 28 days of the notification. The immigration department should make its decision with 84 days of the original notification of the applicant or it will be thought to have confirmed the earlier decision. Judicial review for a decision made on an application may be sought if one believes the laws were not fully utilized
Where the Minister personally decided to refuse an application or cancel the visa, John cannot appeal to the Administrative Appeals Tribunal (AAT)[9]. If the Minister or his delegate refuse Johns’ application or cancel his visa and he still remains in Australia, the immigration laws will be used to review the decision that was made earlier on. If at the time of visa cancellation a person is not within Australia, they have a right to get that decision reviewed, especially if there is a sponsor in Australia. However, if John’s visa is mandatorily cancelled because of his criminal offences then the appeal could go through. In these circumstances, John will be provided with 28 days to request revocation of the decision to mandatorily cancel his visa. A decision made by a delegate of the Minister to not revoke a mandatory cancellation decision is reviewable by the immigration officers.
Australian Law Reform Commission, Australian Government, Uniform Evidence Law (30 July 2012) > <https://www.alrc.gov.au/inquiries/uniform-evidence-law
Cook, Catriona et al, Laying Down the Law (Lexisnexis Orders/service, 9th ed, 2014)
Hemming, Andrew, Miiko Kumar and Elisabeth Penden, Evidence: Commentary and Materials (Lawbook Co., 8th ed, 2013)
Hinton, Martin and Nerissa Schwarz, ‘Practice Note: The Hostile or Unfavourable Witness’, (2008) 27, The University of Tasmania Law Review 229
McEwan, Alexander, ‘The Rule in Brown v Dunn in Australian Criminal Law: MWJ v R and R v Map’, (2006), 13, James Cook University Law Review, 155
Simpson, Shane, ‘The Characterisation of One’s Witnesses for the Purpose of their Impeachment (1976) 50, The Australian Law Journal 410.
U, A, “Land” [2015] Australia and New Zealand (2015) <:https://www.ausnzmigration.com.au/blog/article_special-category-visa-subclass-444-entitlements-and-limitations-of-new-zealand-citizens-in-australia_.html>
Woodhill, Samantha, “Australia – Citation Notes” New laws mean Australia may deport thousands of Kiwis <https://www.australasianlawyer.com.au/news/new-laws-mean-australia-may-deport-thousands-of-kiwis-206121.aspx>
Wroe, David and Rachel Olding, ‘Jihadist Fears Spark Review of Evidence Laws’ the Sydney Morning Herald (Sydney), 1 July 2014
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