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been revoked or cancelled.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): 1-82 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 108Tauariki v Minister for Immigration and Citizenship [2013] AATA 475