Question:
Discuss about the Visa Compliance Cancellation and Review.
John Smithers being a New Zealand citizen has been granted Temporary subclass 444 visa, which permits any New Zealanders to reside and work in Australia if the person remains a citizen of New Zealand. This visa does not entitle the holder with the same benefits and rights that an Australian citizen is entitled to enjoy. Although he is a successful employee in Toyota he his personal behavior is unsatisfactory.
John received a Notice of Intention to Consider Cancellation (NOICC) of his visa under section 501(1) of the Migration Act 1958 on character grounds. According to section 501 of the Migration Act 1958 (Cth) (Migration Act), any visa of a non-citizen may be refused or cancelled if such holder has failed to convince the Minister for Immigration and Citizenship (the Minister) or a delegate of the Minister that they have passed the ‘character test’[1].
There are two essential decision-making process under section 501 where the Minister or the delegate, at the first stage, must take into consideration of the fact whether the visa holder has successfully passed the character test or the threshold test for refusal or cancellation. If the Minister or the delegate of the Minister were of the opinion that the holder has passed the threshold test under section 501(1), (2) or (3) for cancellation or refusal of the visa, it would lead to the second stage of decision-making process that is stipulated under section 501 of the Migration Act 1958.
In the second stage, the Minister or the delegate would make a decision whether they should implement their discretion to cancel or refuse the visa of the visa holder[2]. According to the commencement of the Ministerial Direction No. 55, the Officers of the Department of Immigration and Citizenship (DIAC) are required to comply with the Direction while making cancelling or refusal decisions under section 501(1) and 501(2) of the Migration act 1958. However, the direction shall not be applicable to visa cancellation or refusal decision that the Minister has personally made. Although the Minister may refer to the direction while exercising his personal powers to make refusal or cancellation decisions, nevertheless, he is not obligated to follow the Directions.
Cancellation or Refusal by the Minister or delegate under section 501(1) or (2) of the Migration Act 1958 (Cth)
According to section 501(1), the Minister is entitled to grant or refuse a visa if such person fails to convince that he/she passed the character test[3]. The visa can be cancelled under section 501(2) of the Migration Act on the following grounds:
The Minister or a delegate may exercise its discretionary power conferred upon him by section 501(1) and 501(2) of the Act[4]. Some of the DIAC officers usually act as the delegates of the Ministers while making such refusal or cancellation of visa decisions.
Under section 501 of the Migration Act states that a person is said to have failed the character test on the grounds stipulated under section 501(6) (a) to (d) of the Migration Act which are enumerated as below:
Substantial Criminal record- A person is said to have substantial criminal record if such person have been subjected to:
Any person who has a substantial criminal record shall not pass the character test automatically irrespective of any justifying factors that was related to his/her offense[5].
Past or present, general or criminal conduct- under section 501(6) (c) of the Migration Act, if the present or past criminal or general conduct signifies the student does not have a good character, the person fails the character test[6]. However, while determining whether the person is of good character, the Minister shall consider the facts and circumstances of the relevant case which includes any evidences of ‘recent good behavior of the applicant’ thus, complying with the Direction No.55.
Significant risks of future conduct- A person does not succeed the character test if there is a considerable risk that the person while residing in Australia, would be involved in illegal conduct, molest, harass, or intimidate another person[7]. Such person may pose danger to the community by engaging into harmful activities that might be threatening to the Australian community or any particular part of the community.
Association with persons engaged in criminal conduct- a person does not pass the character test is he/she is involved with a criminal person or a person who the Minister suspects to be engaged in criminal conduct.
Conviction for immigration detention offences- a person shall fail to satisfy the Minister that he passed a character test if the person is convicted of any offense while he was under immigration detention, after he escaped from immigration detention, or before he was detained as is stipulated under section 501 of the Act.
After the NOICC is served it is mandatory that a response is provided along with submissions and evidence, thus, justifying why the visa should not be cancelled. Such response should be provided within 28 days from the date the NOICC is served.
On the facts here, John has been involved in criminal activities in the past years. In 2014, he was charged with theft of a motor vehicle, exhibition of drunken behavior and driving carelessly and he was released with a $2000 good behavior without any conviction. In 2015, he had been convicted for 2 months imprisonment with compensation of $2500 for driving without a license and carelessly and assaults. He further failed to render necessary assistance in an accident scene. Further, in 2017, he had been convicted for 3 months imprisonment with compensation of $3000 for committing burglary with a Samurai sword, a lethal weapon.
The Minister or any delegate shall consider these criminal conducts as present and past or general criminal conduct, which may result in automatic cancellation of the visa[8]. However, as discussed above, while determining whether the applicant is of a bad character, the Direction No.55 mandates the minister or a delegate to consider all the facts and circumstances relevant to this case[9]. The Minister or the delegate is required to consider all evidences including evidence of ‘recent good behavior’ of the applicant. The decision makers should consider the following factors:
On the facts here, in his justification, John may state that he is regretful for his previous conducts and wishes to reform, given the fact that he is going to become a father. He may further state that he has been subject to medical treatment under a Psychiatrist who is of the opinion that there is every possibility for John to reform and abstain from engaging into any form of criminal conduct in the future.
Further, he may state that he is a successful employee in Toyota and is regarded as a highly competent motor mechanic by his colleagues as well as by the employers. In fact, he received an award for the mechanic of the year by Toyota recently. Furthermore, his parents are proud of his employment success.
Under section 501(1), if an applicant is involved in any past or present conduct criminal conduct, a person fails the character test. However, John may justify his conduct on the following grounds:
As per Direction No.55, the decision-makers may consider the following factors while assessing whether the past or present conduct implies that they do not have a fine personality:
John has not been engaged in any of the above circumstances, and his conduct were though criminal in nature but it did not amount to any of the factors mentioned above.
In order to establish that John regrets his part conduct and wishes to reform, he must attach the doctor’s certificate that there is a complete possibility that he would not commit any criminal conduct in the future as evidence as well as evidence of his organizational conduct[10]. Since failing character test does not automatically cancel or refuses the visa, the decision –maker shall have regards to certain primary considerations stipulated under Direction No. 55 that are follows:
Therefore, John may apply state in his response that his girlfriend is expecting his child and it is for the welfare of the unborn child that his visa is not cancelled. Further, his girlfriend Hannah is part of his immediate family and has no economic stability to raise the child by herself as she is a student and John has a financial stability to support her and their unborn child. His immediate family also includes his parents who are old and have significant health problems as serious as Parkinson’s disease and dementia. Since the NOICC is served to cancel the visa, the decision-makers must consider that John would face economic impediments relating to standard of living[11]. Furthermore, since John is regarded as the best technician of the Toyota Company, it is in the best interest of the Australian company that John is not deported as it might affect the production of the company[12]. These grounds establish the strength, nature and duration of John’s ties to the country.
However, it is also a fact that the Minister is not obligated to comply with the Direction while making personal decision with respect to the cancellation or refusal of visa on the ‘character grounds’ under section 501 of the Migration Act 1988.
Consequences of cancellation of visa on character grounds
If the Minister for Immigration and Citizenship cancels the visa on the ground of character test, John shall face serious consequences like placement in immigration detention for long periods. He may be separated from his family and friends or may be removed from the country.
However, John may apply to the Administrative Appeals Tribunal (AAT) within 9 days from the decision made by the delegate, for reviewing the merits of the decision or challenge the legality of the decisions through the courts. However, only a Delegate’s decision may be appealed before the AAT[13]. The AAT shall review the original decision and set aside such order under section 501 of the Act. John may apply for review of the decision made by the Minister and the delegate before the Federal Court or High Court of Australia where the court may set aside the original decision based on jurisdictional error.
References
Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and social exclusion. Oxford University Press, 2013.
Bucerius, Sandra M., and Michael H. Tonry, eds. The Oxford handbook of ethnicity, crime, and immigration. Oxford Handbooks, 2014.
Donald, Adam. “Immigration points-based systems compared.” BBC News (2015).
Hoang, Khanh, and Sudrishti Reich. “Managing crime through migration law in Australia and the United States: a comparative analysis.” Comparative Migration Studies 5.1 (2017): 12.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.
https://www.ombudsman.gov.au/__data/assets/pdf_file/0027/42597/Own-motion-report-into-the-Administration-of-Section-of-the-Migration-Act-1958-final.pdf
https://www.border.gov.au/Trav/Visa-1/444-
Joppke, Christian. “Through the European looking glass: citizenship tests in the USA, Australia, and Canada.” Citizenship studies 17.1 (2013): 1-15.
Lint, Willem De, Lorraine Mazerolle, and Rick T. Sarre. “Book Review, Leanne Weber, Policing Non-Citizens.” (2015).
McGrath, Jane. “A path of devotion: Migration law and the art of specialising.” Bulletin (Law Society of South Australia) 39.1 (2017): 8.
McIntyre, Deborah, et al. “Experiences of adults with high-care needs and their family members with housing and support pathways in Australia.” Disability and rehabilitation 39.18 (2017): 1829-1839.
Migration Act 1958 (Cth)
Oldfield, Yvonne. “Australia’s guestworkers? A discussion of the rights of New Zealand citizens to enter, reside and work in Australia.” (2014).
Phillips, Janet, and Harriet Spinks. “Immigration detention in Australia.” Parliamentary Library 20 (2013).
Stanley, Elizabeth. “Expanding crimmigration: The detention and deportation of New Zealanders from Australia.” Australian & New Zealand Journal of Criminology (2017): 0004865817730858.
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