Visa Compliance and Cancellation Proof Reading Service

Visa Compliance and Cancellation Proof Reading Service

Case Scenario

Abdul Ahmed has been successfully involved in infrastructure business in Malaysia for past 40 years and he takes projects from government of Malaysia as well as from local governments. His daughters are citizens of Australia as they were sponsored to Australia by an international accounting firm. One of his grandchildren named Heather aged 7 has been diagnosed with severe Down Syndrome. As Heather is very close to Abdul and Yasmin, they have been flying to Australia to look after her and because of it; they have applied for a Contributory Parent visa sub-class 143.

The Contributory Parent visa (sub-class 143)allows parents to reside in Australia if their child is an Australian citizen or Australian permanent resident. The applicants can apply for the Contributory Parent visa (subclass 143) within two years of their residing in Australia on 173 visa in case they prefer to live permanently in Australia. In order to apply for Subclass 143, the applicant must hold a temporary Contributory Parent visa (subclass 173) and must abide by all the criteria applicable to that visa (subclass 173), which include child must be Australian citizen residing legally in the country for at least 2 years; must have a sponsor; must fulfil the balance of family test and must also fulfil the health and character requirements.

First of all, they have applied for Contributory Parent visa (subclass 143), it is essential that they must have met the criteria under Contributory Parent visa (subclass 173). The criteria under this subclass require meeting the medical and character requirements of the applicant. When after one year of applying for visa, Abdul and Yasmin were asked to undergo health and character checks. The police clearance of Abdul revealed that he had a criminal record then on what basis, they were allowed under subclass 173 in the country. It was revealed that Abdul had been convicted for corruption and was provided 2 years jail but was released after 11/2 years because of good behaviour; however, he has not considered it to be as bribe.

Character Cancellation under Section 501

There are two steps of decision making under section 501 of the Migration Act. At the first step, the Minister or delegating authority are required to consider that the individual justifies the character test which is measured as threshold test for the refusal of visa application under subsection 501(6) and if they get satisfied that the threshold test under subsection 501(1), (2), or (3) for the refusal or cancellation has been fulfilled. The second step involves the Minister of delegate to decide whether to exercise their discretion to refuse or cancel the visa of the individuals. The Minister might refuse to grant a visa or might cancel a visa to an individual under section 501(3) if he or she does not satisfy the Minister regarding their character test and even the Minister is satisfied that the refusal or cancellation of visa would be in national interest.

Submission to the Minister

The visa application by Abdul and Yasmin should not be refused under Section 501 of the Migration Act. There are various concerns about the human rights of the individuals whose applications for visas are refused under section 501 of the Migration Act. Due to Visa refusal under section 501, it results in the separation of a parent and their children. When the visa of parents gets refused, they cannot reside in Australia and it affects the life of their children to a greater extent.

It depends on the circumstances that an individual can be relevant to the Administrative Appeals Tribunal (AAT) for review of the merits of decision after the refusal of visa application under section 501 of the Migration Act. However, as the decision has been made by the Minster as submission is to be provided to the Minister, merit review by the AAT is not possible. But, the Minister possesses power to leave behind the original decision by DIAC officer under section 501 under certain circumstances. It is required that the Minister should reserve the original decision whether positive or negative for the applicant with their own decision to refuse the visa. The Minister is considered as the highest authority and their decision to cancel or refuse visa to be reviewed by the AAT.

Under Section 501 of the Migration Act, if a person does not pass the character test falling within any of the grounds mentioned in subsections 501(6)(a) to (d) which are;

considerable criminal record

conviction for immigration custody crimes

relationship with suspects of criminal conduct

past and present criminal conduct

major risk of specific types of future conduct

Abdul have considerable criminal record as he was convicted for corruption and was sentenced to 2 years jail but he was released after 11/2 years because of his good behaviour. So, mitigating factors might be taken into consideration if the decision maker is taking into consideration whether to exercise the discretion to refuse the visa of an individual. In the process of making that decision, the delegate of the Minster could set out a number of primary considerations and various other considerations under Direction No. 55.

The primary considerations under Direction No. 55 that could be taken into consideration are the best interests of the minor children. While considering whether to cancel a visa, the decision maker must be taken into consideration the additional primary considerations of power, period and nature of the individual association with Australia. However, other considerations are of less significant than the primary consideration, the immediate family of the individual can be affected due to the refusal of the visa application.

Taking into consideration all these facts, the Minister should not refuse the visa application of Abdul and Yasmin as their grand child needs them when she is suffering from Down Syndrome and she is very close to them. However, her parents are there to look after her but she is emotionally attached to her grandparents because of which they have to travel every now and then to be with her. Considering these specific serious circumstances, they should be allowed to apply for visa of Australia under Contributory Parent visa (ub class 143).

Advise to Abdul and Yasmin

To apply for contributory parent visa, an individual must be the parent of the Australian citizen. In the event if the application of visa is refused, Abdul and Yasmin could apply for other visas as well. As they are elderly parents of citizens of Australia, they can apply for Contributory Aged Parent (Migrant) visa (subclass 864)orContributory Aged Parent (Temporary) visa (subclass 884) also

For Contributory Aged Parent (Migrant) visa (subclass 864)as well asContributory Aged Parent (Temporary) visa (subclass 884), it is essential to fulfil the age criteria, which is eligibility of pension age in Australia. The age of more than 65 years is essential and the individual should be sponsored by their children. However, there is requirement of fulfilling medical and character aspects, you will be required to submit police certificate when requested to by the department. There are certain circumstances under which, the Department or the Minister can exercise discretion not to cancel or refuse visa. It is under discretionary powers and Ministerial Direction 65 that the Minister or their delegate decides whether or not to refuse the visa application. While taking this decision, numbers of factors are taken into consideration such as safety of the Australian community, expectations of the Australian community, best interests of any minor children of the applicant in Australia who might get affected by a decision to refuse the visa of the individual, international legal obligations of the country, impact of visa refusal on family of the individual residing in Australia as well as impact on Australian business interests.

Taking into consideration, all these aspects it is evident that Abdul and Yasmin can also apply for other visas but the character requirement would be mandatorily satisfied by them. As Abdul had been convicted for two years, there is no provision to approve his character requirement and no justification could be placed. However, submission to the Minister might get approved and refusal order might be revoked because Minster is considered as the highest authority and their decision cannot be challenged. Considering good behaviour of Abdul, he was released from jail after 11/2 years. Moreover, he had done number of charitable acts in his life which should also be taken into consideration. He had not been convicted ever since and should be provided fair opportunity to prove that he has now become a good person. Furthermore, he has been in business for 40 years now and had never been found involved in criminal acts. So, visa application should be approved by the Minister.

Probability of Success of Response

Abdul and Yasmin are highly concerned about the probability of success of the response to the Minister regarding the potential section 501 refusal. The obligations under the Code of Conduct in this regard would be to provide assistance to the applicants related to the provisions.

It depends on the discretion of Minister if he or she would consider the application of the applicants based on the circumstances being faced by their immediate family in Australia. Under Ministerial Direction 65, the Minister or their delegate could consider the submission of Abdul and Yasmin considering the serious medical condition of their grandchild and for the best interests of their grandchild; the Minister might allow their application. However, they have fulfilled all the criteria under the visa application requirements; the character requirement of Abdul has become an issue. As he had been convicted for more than 12 months, his character is not satisfactory for the visa application requirement. However, it might be considered by the Minister that he had been released 6 months before his release because of his good conduct. Furthermore, he had never been found involved in any criminal acts since then and has been in business successfully and take government contracts as well. It means the government of Malaysia has no doubt regarding his integrity and trustworthiness and he has become a person with good conduct now. Additionally, he is doing number of charitable activities in Malaysia and Singapore currently and is utilizing the profits from his business in variety of charitable acts all over the country.

Thus, the probability of success of their response to the Minister is good. If the Minister would consider the medical conditions being faced by the family of applicants in Australia and need of their presence in Australia, they would allow their application. As their grandchild needs them in serious medical condition, they should be allowed by the Minister to go to Australia to be with their 7 year old child. Furthermore, on the ground of his good conduct and charitable activities all over the country and in Singapore, the character requirement satisfaction should not be taken into consideration and he should be given a fair chance to be good and act well. Above all, they want to stay in Australia to be with their grandchild who is suffering from serious medical condition, so there are high hopes that Minister would allow their request and they will be able to clear the mandatory requirements for visa approval of Australia. Under the ethical code of conduct, it would be the mandatory duty to provide them with high hopes that the response will be successfully accepted by the Minister. Otherwise, judicial review can also be taken into consideration for the further actions against refusal of visa application. So, there are other options as well and Abdul and Yasmin should not be extremely concerned about probability of success of their act. In this condition, they should not lose hope and should depend on the discretion of the Minister for the best interests of their immediate family residing in Australia. They should get prepared for other options as well if their submission is refused by the Minister and they should prepare documents to be presented during judicial review if the submission is refused.

References

 

1. Oz Kiwi Association, "Section 501 Visa Cancellation Process Submission" (2018)
2. Australia Government, Visa Compliance (2018) Studyinaustralia.gov.au <https://www.studyinaustralia.gov.au/english/live-in-australia/visa-compliance>
3. Australian Human Rights Commission, 2 When Can A Visa Be Refused Or Cancelled Under Section 501? | Australian Human Rights Commission (2018) Humanrights.gov.au <https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1>
4. Australian Human Rights Commission, 4 What Are The Human Rights Issues Raised By Refusal Or Cancellation Of Visas Under
Section 501? | Australian Human Rights Commission
 (2018) Humanrights.gov.au <https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-3>

5. Australian Human Rights Commission, 5 Can A Person Seek Review Of A Decision Under Section 501 To Refuse Or Cancel A Visa? | Australian Human Rights Commission (2018) Humanrights.gov.au <https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-4>
6. Australian Visa Bureau, Australia Contributory Parent Visa - Australian Visa Bureau (2018) Visabureau.com <http://www.visabureau.com/australia/contributory-parent-visa.aspx>
7. Department of Home Affairs, Visa Conditions (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
8. Department of Home Affairs, Complying With Your Obligations (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/complying-with-your-obligations>
9. Department of Home Affairs, Contributory Parent (Temporary) Visa (Subclass 173) (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/Trav/Visa-1/173->
10. Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/79character>
11. Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/79character>
12. Department of Home Affairs, Fact Sheet - Contributory Parent (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/39contributory-parent>
13. Department of Home Affairs, Contributory Parent Visa (Subclass 143) (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-1/143->
14. Immigration, TSS, Visa Cancellations | TSS Immigration (2018) Tssimmigration.com.au <https://www.tssimmigration.com.au/services/detail/visa-cancellations>
15. Turner Coulson Immigration Lawyers, Visa Refusals | Turner Coulson Immigration Lawyers Sydney (2015) Turner Coulson Immigration Lawyers Sydney <https://www.tcilawyers.com.au/visa-refusals.html>
16. Aussizz Migration & Education Consultants, Australian Visa for Parents | Parent Visa Australia | Aussizz Group (2018) Aussizz Group <https://www.aussizzgroup.com/india/contributory-parent-visa-subclass-173-and-14