Immigration Law Assignment (Solved)
Added on 2020-05-16
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Immigration LawName:Course Professor’s nameUniversity nameCity, StateDate of submission
Question 1Aldon understands that a decision under s 501(3) of the Migration Act1958 (Cth) mustbe made by the Minister for Home Affairs personally.Given that the decision to cancelAldon’s visa was made by the Parliamentary Secretary, Aldon seeks advice as towhether he can challenge the decision? (10 marks)In Australia, the Migration Act 1958(Cth) 501 allows the minister to cancel visa of a permanent citizen on grounds of lack of good character. Once the visa is revoked the person should be deported to his/her country of origin. Aldon can therefore challenge the decision made by the Parliamentary Secretary because he does not have the legal mandate to revoke his visa. The legal mandate is given to Home affairs minister. 1 However, Section 501 gives grounds for visa cancellation where the immigration department is satisfied that the holder of the visa is likely to engage in criminal activity or conduct in the country. Second, if the visa holder represents danger to the community. Third, the visa holder would incite discord in the country. Fourth, is not of good character.2 The Act gives power to the minister to cancel a visa without applying any procedures like giving prior notice to the visa holder or inviting thevisa holder to respond.This Regulation establishes the form of a visa issued to a foreign citizen, the procedure and conditions for its execution and issuance, extension of its validity, restoration in case of loss, as well as cancellation and applies to all categories of visas.The cancellation of the visa means that Aldon is in the country illegally and is therefore unlawfully in the country . Thus he should apply for a new bridging visa so that he can pply to the administrative appeals. A tribunal for his visa will sit and deliberate whether to 1John Vrachnas,Migration And Refugee Law In Australia(Cambridge University Press, 2007).2Joanna Howe and Rosemary J Owens,Temporary Labour Migration In The Global Era.
reinstate the visa or if he will be ordered to leave the country. 3 The cancellation was done by the Parliamentary secretary whose has no legal mandate or authority to cancel Aldons visa which means that Aldon has a big chance of winning the appeal. Section 501 of the immigration Act only gives powers to revoke a visa to the minister.In making the decision to cancel Aldon’s visa, the Parliamentary Secretary did not strictly consider and apply Direction no. 65. Aldon seeks your advice as to whether this fact has an adverse effect on the legality of the decision made? (10 marks)If the Parliamentary Secretary did not consider and apply direction no.65, it means that he didnot check on the considerations provided for in Part A, Part B and Part C . thus, will have an effect on the legality of the decision made. Part A identifies the considerations that should belooked into and which are relevant in the determination as to whether to exercise discretion when cancelling a non citizen visa. Annex A of the Act is important because it gives directionon how to apply character test. This means that before cancelling Aldons Visa, the parliamentary secretary did not follow the guidelines set in Direction no. 65 and therefore the decision to cancel the visa may have been wrong because direction no.65 guidelines were not applied. Aldon is only being suspected of being a member of a gang , the parliamentary secretary should have ensured that the character test is done according to the law to determinewhether Aldon has failed the character test. The decision to cancel the visa must be given in full consideration of the circumstances of the case. The purpose of direction no.65 is to provide guidance to decision makers who exercise powers under section 501 of the immigration Act4 . This was important for the parliamentary secretary to follow the guidelines given by direction no.65 so as to give Aldon the due process needed before cancelling the visa.3John Vrachnas,Migration And Refugee Law(Cambridge University Press, 2012).4For Your Information(Australian Law Reform Commission, 2008).
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