Australian Migration Law PDF

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Australian Migration Law
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A proposal on the decision in Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
(17 July 2018)
Introduction
The task in this paper requires a consideration of the decision of the Immigration
Tribunal set up to review a Ministerial decision on the cancellation of a Resident Return Visa
subclass 155. This is a permanent resident visa which has the effect that the applicant granted
such visa is allowed to stay and remain in Australia1. The holder of the visa is also permitted to
travel in and out of Australia without any restriction so long as the visa is still valid and has not
been revoked or cancelled. The five year period is only applicable to travels out of Australia and
not to stay in Australia.
Issue
The issue for determination is whether there are any legal errors with the decision of the
tribunal in considering Mr. Ali’s case on the revocation of his permanent resident visa by the
Ministerial delegate who in this case is a migration agent.
Law
Here, ill identify the legal problems with the decision of the tribunal in handling and
deciding the reference by Mr. Ali.
Firstly, the tribunal erred in their interpretation of a substantial criminal record on the part
of the applicant and their consideration and decision on the test as to the character of the
applicant2. A visa cancellation is only mandatory in circumstances where the applicant is found
to have a substantial criminal record as provided under section 501(3A)3. The reasons why a
1 Phillips, Janet, and Harriet Spinks "Immigration detention in Australia" Parliamentary Library 20 (2013): 1-8
2 Crock, Mary, and L. A. Berg Immigration, refugees and forced migration: law, policy and practice in Australia
(Federation Press, 2011) 37
3 Migration Act 1958 (Cth)

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person may fail to pass the test as to the character are listed under section 501(6)4, and include;
where the applicant is held to possess a substantial criminal record, that the applicant poses
danger to the citizens of Australia and the community at large; and that in the opinion of the
Minister or his delegate, the applicant is of bad character.
Mandatory revocation of a resident visa should be done where the applicant has been
sentenced by a court of competent jurisdiction to imprisonment to imprisonment for a term of not
less than 12 months or the applicant is already serving a custodial sentence or has been found
guilty of a sexual or indecent act with a child5. On the character test, the tribunal made reference
to irrelevant history and not the time limits outlined under section 501 of the Act. Section 501
considerations are limited to the time when the decision to revoke the visa was made by the
Minister or his delegate but not to events that occurred 10 years earlier. Section 501 is clear on
the period to be considered by the tribunal which they ignored and misapplied inappropriately.
Secondly, the tribunal based their decisions on irrelevant considerations. There are
primary considerations that relate to a request for review of a visa cancellation that the tribunal
ignored and disregarded. The primary considerations are outlined under a Ministerial Direction6
and include;
a) The protection of citizens of Australia from criminal conduct;
b) The best interest of any children of tender age who are likely to be affected by the
decision to revoke the visa; and
c) The expectations held by the Australian Community.
Protection of citizens of Australia
4 Migration Act 1958 (Cth)
5 Clayton, Gina. Textbook on immigration and asylum law (Oxford University Press, 2016)
6 Ministerial Direction No. 65 pt C sub-cl 13(2)

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In the case of Sabharwal v Minister for Immigration and Border Protection,7 the court in
deciding on the nature and extent of risk stated that the Minister has to be satisfied that the
applicant is likely to engage in a criminal conduct in left to stay and remain in Australia. In this
case scenario however, there was no evidence that linked or portrayed Mr. Ali as a person who
possess danger to the Australian citizens. The Tribunal is therefore wrong in their decision and
interpretation of this requirement.
Best interest of any children of tender age in Australia
The tribunal ignored the fact that Mr. Ali had a close relationship with children of tender
years that depended on him. These are his grandchildren who are likely to suffer when his visa is
revoked due to the close relationship and a father figure role that Mr. Ali plays in the lives of
these children. Even after appreciating that the best interest of the children is on non-revocation
of Mr. Ali’s visa as stated under paragraph 89 of the Tribunal’s decision. The Tribunal still went
ahead to disregard this important aspect to be considered in such a case.
The Tribunal ignored the evidence before them as brought by Ms Kasim on the
contribution and care that Mr. Ali has on the lives of the children as well as the evidence of Ms
Bibi, the applicant’s wife on the interest of the young children. These are persons who live in the
same house with Mr. Ali and their evidence should not have been ignored as the Tribunal did in
this case. In the case of Tauariki v Minister for Immigration and Citizenship8the Tribunal in
deciding a similar case of revocation stated that the visa could not be revoked because the
applicant had minor children and grandchildren who depended on him.
Expectations by the Citizens of Australia
7 Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
8Tauariki v Minister for Immigration and Citizenship [2013] AATA 475

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Paragraph 6.3 (2)9, provides that the Australian citizens expects the Government to cancel
a visa of any non-resident person who commits a serious offence in Australia. Under this limb,
Mr. Ali has not committed any serious crime at the time the visa was cancelled; there is no
evidence that he was about to commit any serious crime and therefore the Tribunal ignored to
make and apply this consideration in Mr. Ali’s case. No evidence was tendered to link Mr. Ali or
to portray him as someone who has committed any serious crime at the time or was likely to
commit a serious crime. Mr. Ali therefore is a person who does not pose any risk to the members
of the Australian Community.
Apart from the primary considerations, the Tribunal failed to apply and interpret the other
considerations that clause 14 part C10 require of them. The other considerations that clause 14
required the tribunal to consider in this case include:
a) International obligations on non-refoulement
b) The strength, duration and nature of ties
c) Australian business interest and impacts
d) The impact on the victims
e) The extent of impediments when the applicant is removed
All the considerations listed above when weighed against the facts of the case and the
circumstances support Mr. Ali’s status. It is highly regrettable that the Tribunal ignored all these
factors in making the visa decision on Mr. Ali’s case. In the case of Suleiman v Minister for
Immigration and Border Protection11, it was stated the Tribunal should evaluate both the primary
and other considerations and to give both considerations the appropriate weight when deciding a
visa dispute. However, it is evident that Tribunal breached this duty when they failed to give the
9 Ministerial Direction No. 65
10 Ministerial Direction No. 65
11 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

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deserved weight or consider these facts as demanded by clause 14 of the Ministerial Directive
No. 65.
The tribunal misapplied the primary considerations and failed to take into account the
other relevant considerations in Mr. Ali’s case and instead made decision based on emotions and
an already formed opinion on the character of Mr. Ali. In doing so, the tribunal chose to take a
broader approach in deciding the matter instead of the well set considerations under the
Migration Act 1958 and the Ministerial Directive No. 6512 that was applicable considering the
circumstances of this case. Mr Ali therefore has the right to appeal the decision of the Tribunal to
the federal court on a question of law. The relevant question of law here is that the Tribunal
misinterpreted the provisions of section 501 of the Migration Act 1958 and as a result, arrived at
a wrong decision.
Application
The Tribunal in their determination of the character test on the applicant under section
501(6) of the Migration Act 1998 stated that the applicant is a person who has committed several
offences in the past. On this ground, Mr. Ali was found not to pass the character test. However,
this should not have been the case because at the time Mr Ali’s visa was revoked, he was not
serving any custodial sentence. His last conviction ended in January 2018. Therefore under the
provisions of section 501 of the Migration Act 195813, an individual is held to be of bad character
where it is evident that at the time the visa is cancelled, he is serving a custodial sentence for a
serious crime for a period of more than 12 months or he has been charged with a very serious
crime.
12 Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global perspective (Stanford
University Press, 2014) 26
13 Vrachnas, John, Mirko Bagaric, Penny Dimopoulos, and Athula Pathinayake Migration and refugee law: Principles
and practice in Australia (Cambridge University Press, 2011) 15

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It is however the contrary in the case of Mr. Ali herein, he is neither serving a custodial
sentence nor charged with a serious crime under the laws of Australia. The Tribunal was strong
to conclude that Mr. Ali is of bad character and cannot pass the character test14. The tribunal
instead of basing their decisions on the primary considerations when faced with a question as to
whether a permanent resident visa should be revoked, the tribunal ignored the considerations
which they are mandated to consider. The primary considerations include;
a) The protection of citizens of Australia from criminal conduct;
b) The best interest of any children of tender age who are likely to be affected by the
decision to revoke the visa; and
c) The expectations held by the Australian Community.
The tribunal however did not consider the three most fundamental considerations. Mr. Ali
has three young grandchildren whom he lives with in his house together with their mother and
his wife. These three children have known him as a father for as long as they have lived. The
best interest of these children would have been that their grandfather stays with them and moulds
them into better people in the society. Revoking Mr. Ali’s visa and sending him back to Fiji is
not in any case in the best interest of these young children. The tribunal ignored the evidence of
Mr. Ali’s wife Ms Bibi and her daughter Ms Kassim and resort to considering irrelevant facts not
before them.
The other considerations that the Tribunal ought to consider but wholly ignored would
have weighed against the decision. Australia has an obligation on non-refoulement15. Mr. Ali has
14 Callaghan, Sascha, and Christopher J. Ryan "Rising to the human rights challenge in compulsory treatment–new
approaches to mental health law in Australia" Australian & New Zealand Journal of Psychiatry 46, no. 7 (2012):
611-620
15 Cuéllar, Mariano-Florentino "The Political Economies of Immigration Law" UC Irvine L. Rev. 2 (2012): 1

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spent over twenty years living in Australia. He has no known relatives in Fiji and he is not a
fugitive who should be returned to Fiji. By affirming the cancellation of his visa, the Tribunal
breached an international obligation on non-refoulement.
Mr. Ali having lived in Australia for twenty years, he has had close ties with the
Australian culture and people as well as his family. He has made immense contribution to the
economy of Australia by paying taxes when he was on a gainful employment. His connections
are extensive through his children, siblings, grandchildren, nieces and nephews. Returning him to
a country where he has no relation or someone to take care of him owing to his age and health
status is a breach of his right to liberty. Revoking his visa would be severing the strong ties he
has had over the years in Australia16.
Conclusion
In summary therefore, the tribunal made several legal errors in determining this case.
They considered irrelevant facts while ignoring altogether or misinterpreting the relevant facts
and considerations in this case. The law to be followed in this case was section 501 of the
Migration Act together with the Ministerial Directive No. 65 which provide clear manner on how
to deal with cases such as this where Mr Ali sought to retain his visa and remain in Australia.
The Tribunal however disregarded all these and made a decision that if flawed and bad in law.
Mr Ali can appeal this decision to the Federal Court on a question of law since the Tribunal
misinterpreted the provisions of the Migration Act 1958 that was relevant to the making of the
decision brought before it by Mr Ali.
16 McAdam, Jane. Climate change, forced migration, and international law (Oxford University Press, 2012) 10

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Bibliography
Balgamwalla, Sabrina. "Bride and prejudice: How US immigration law discriminates against
spousal visa holders." Berkeley J. Gender L. & Just. 29 (2014)
Castles, Stephen, Hein De Haas, and Mark J. Miller The age of migration: International
population movements in the modern world (Macmillan International Higher Education,
2013)
Clayton, Gina. Textbook on immigration and asylum law (Oxford University Press, 2016)
Crock, Mary, and L. A. Berg Immigration, refugees and forced migration: law, policy and
practice in Australia (Federation Press, 2011)
Phillips, Janet, and Harriet Spinks "Immigration detention in Australia" Parliamentary
Library 20 (2013): 1-8
Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global
perspective (Stanford University Press, 2014)
Vrachnas, John, Mirko Bagaric, Penny Dimopoulos, and Athula Pathinayake Migration and
refugee law: Principles and practice in Australia (Cambridge University Press, 2011)
Callaghan, Sascha, and Christopher J. Ryan "Rising to the human rights challenge in compulsory
treatment–new approaches to mental health law in Australia" Australian & New Zealand
Journal of Psychiatry 46, no. 7 (2012): 611-620
Cuéllar, Mariano-Florentino "The Political Economies of Immigration Law" UC Irvine L. Rev. 2
(2012): 1
McAdam, Jane. Climate change, forced migration, and international law (Oxford University
Press, 2012)
Cases

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Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tauariki v Minister for Immigration and Citizenship [2013] AATA 475
Legislations
Migration Act 1958 (Cth)
Ministerial Direction No. 65