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LML6002 Australian Migration Law Oz Assignments
Having permanent residence in Australian does guarantee a person safe or protect one from having his or her visa cancelled. Any permanent residence that is involved in criminal offences or has bad character in Australia can have their visas cancelled. Any person who has failed the character test or is perceived to be a threat to the Australian community can lose their Australian visa through cancellation. The cancellation of the visa can be done by the Minister of the Immigration personally, a senior officer of the department, or the assistant Minister based on the power given to them by section 501 of the Migration Act 1958 (Er-kai Wang, 2018). However, the law provides some powers only to the Minister to cancel visa without natural justice and to replace his personal decision for another decision making process. In case the Minister uses such powers, his decision cannot be reviewed by a tribunal. Section 501(3A) states that a minister must cancel a visa if the person owning the visa has a substantial criminal record, has been involved in sexual act that involves children, and if he or she is serving a sentence of imprisonment (Er-kai Wang, 2018). Serving a sentence of imprisonment may be on full-time basis in a custodian institution, for an offence against a law of the commonwealth, a Territory or a State.
Consequently, according to Commonwealth Ombudsman, the Minister is personally allowed by Section 501(4)3 of the Act to make all decisions to revoke cancellation. The Ombudsman has also considered that some of the cases could be delegated to reduce delays. However, for John to get his visa cancellation will depend fully on how his case has been prioritized. The cases may be prioritized based on the reputation risk, seriousness of the case, the impact it has on the good order from the immigration centres, and the health of the detainee (Morales, 2016). On the other hand, priorities are not affected by the circumstances of the family or from the responsibilities of the carer, but the information is included when making a decision to revoke a cancelled visa.
For a Minister to be able to cancel a visa, he or she is required by law to give a written notice for such decision. The law gives the affected person 28 days after the notice, and this duration cannot be extended. Such information is organized for the person who is expected to make a decision. The direction provided by the Minister needs the decision maker to consider the protection of the community in Australia from criminal or other severe behavior, the best interest of Australian minor children, and the expectations of the community in Australia (Morales, 2016).
Other than that, he must also consider: First, the international obligations not to take them back to persecution or other grave danger. Secondly, he should consider the nature, strength, and the duration of relations to Australia. Thirdly, he or she should consider both the impact on the victim and the impact on the interest of the Australian business. Lastly, the extent to which the impediment would reach if removed. Lastly, based on the argument of the Commonwealth Ombudsman’s report, it is clear that the power to cancel a permanent residency visa is bestowed in the hands of the Minister. However, to determine whether the Assistant Minister made a mistake will only rest with the Minister, for example, if he could have delegated his duty to his assistant due overload of work as the Ombudsman has reported. However, the law under section 501(3) does not provide any authority for the assistant minister to perform duties of the Minister.
The decision to grant or refuse to grant visa is found in Section 65 of the Migration Act 1958, which is a subject to sections 84 and 86. After considering a valid visa application, if the Minister is satisfied that: First, the heath criteria have been fulfilled. Second, other criteria prescribed by the Act have been satisfied. Third, the grant of the visa is not restricted by sections 40, 91WA, 91WB, 500A, 501 or any other provision in the Act or any other business law of the Commonwealth, and the application charge has been paid, he can grant the visa. However, if the Minister is not satisfied, he can refuse to grant the visa (Er-kai Wang, 2018). Section 40 talks about the circumstance for granting visas. It says that the regulations may say that Visas of a particular class may be granted only in a specified circumstance. On the other hand, s 91WA of the Act addresses the issue of providing bogus documents or destroying documents that determine that identity of an individual. Section 91WA states that, a Minister must not give a protection visa to an applicant who wants a protection visa if, he has provided bogus document as evidence of the applicant nationality or identity.
Section 84 gives the Minister authority to suspend the application process for visa of nay type specified in the resolution made under the section. On the other hand Section 86 restricts the Minister from giving a visa of any type specified in a solution in section 85 in case the number of such type of visa is granted in a particular financial year has reached the maximum number that was specified. Moreover, under Section 195A, the Minister does not have a compellable power to grant a visa to a person in detention as stated under section 189 of the Act (Grewcock, 2011). Therefore, based on Section 65, a person who fails to meet the regulations required for the application of a visa cannot be granted a visa. Based on this requirement, the Minister who gave initially granted visa to John found that he had not violated any of the regulations. Because of this, John may argue that he has never been involved in any criminal act that can risk the Australian community.
To conclude with, John may have a chance to ague his side with Minister, being the law identifies him personally as the one who can cancel the visa, but fails to indicate if such roles can be delegated. However, if the allegation that John is connected to the criminal activities in Sydney is true, then the Australian government may cancel his visa in consideration treaties and the interest of the community.
1. Er-kai Wang. (2018). Visa Cancellation and Criminal Law. Legaldate, 30(3), 8–11.
2. Grewcock, M. (2011). Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958.
3. Morales, K. (2016). Australia’s Guantanamo Bay: How Australian Migration Laws Violate the United Nations Convention against Torture. American University International Law Review, 31(2), 327–350.
4. Morales, K. (2016). Australia’s Guantanamo Bay: How Australian Migration Laws Violate the United Nations Convention against Torture. American University International Law Review, 31(2), 327–350.