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Section 501 Visa Cancellation Case Study

   

Added on  2020-04-07

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[Student name/number:] 1A CASE STUDY ANALYSIS ON VISA CANCELLATION[Author(s) name(s):]Migration Law and PracticeBLO5607- SUBJECT C: Visa Compliance, Cancellation and ReviewTutor(s) name(s):Victoria University
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[Student name/number:] 2Table of ContentsIntroduction................................................................................................................................2An Evaluation of the Prospects of Success for the NOICC.......................................................3Options Available to the Visa Holder........................................................................................7Conclusion..................................................................................................................................8Bibliography...............................................................................................................................9A. Articles/Books/Reports.....................................................................................................9B. Cases................................................................................................................................10C. Legislation.......................................................................................................................10D. Other................................................................................................................................10
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[Student name/number:] 3IntroductionThe case study describes a scenario where a New Zealand citizen, John Smithers, is facedwith possible visa cancellation based on character grounds as provided for under section 501of the Migration Act 1958 (Cth)1. Generally, the Act 1958 provides that a non-citizen’s visais subject to cancellation where they fail to satisfy the Minister for Immigration or theirdelegates that they have passed the character test described under the Act.2 Ultimately,cancellation may result in detention and deportation of the visa holder in question; however,various factors must be considered prior to cancelling a visa.3 The character test mentionedabove considered criminal records and conduct that may pose a national threat; a visa holderwith a ‘substantial criminal record’ or who has been convicted of certain offences is likely tofail the character test and as such may be at risk of visa cancellation.4John Smithers, the visa holder in question, is a 24-year-old New Zealand Citizen who hasbeen living and working in Australia for the past 10 years under a Special Category(Temporary) Sub-Class 444 visa together with his elderly parents. Over the past five years,while working at Toyota, Smithers appears to have fallen into bad company and has beenfaced with various convictions. He has been charged with drunken behaviour, driving withouta license, assault, careless driving and most recently burglary with a dangerous weapon. Hismost recent charge led to a conviction of 3 months imprisonment and a three thousand dollarcompensation penalty. John recently found out he would be becoming a father and this hastriggered a sense of remorse; he has sort treatment and it is believed that he will berehabilitated. However, his previous conduct has led to a review of his visa and as such hehas been issued with a Notice of intention to Consider Cancellation (NOICC); the notice cites1Migration Act 1958 (Cth), herein referred to as the Act 19582 Australian Human Rights Commission, Background paper: Immigration detention and visa cancellation undersection 501 of the Migration Act (March 2010) Refworld http://www.refworld.org/pdfid/4ec3a6052.pdf3 CCH Australia, Australian Master Human Resources Guide (8th ed, CCH Australia Ltd 2010) 7014Migration Act 1958 (Cth), s 501
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[Student name/number:] 4character grounds under s 501 (2) of the Act 1958. The following discourse aims to examinethe prospects of success for cancellation with regard to the notice as well as any optionsavailable to John Smithers in the event that his visa is cancelled.An Evaluation of the Prospects of Success for the NOICCAccording to s 501 (2) of the Act 1958, the Minister may cancel a visa already granted to aperson where they have reasonable justification to suspect the person has failed the charactertest set out under s 501 (6), or where the visa holder fails to satisfy the minister that they havepassed the test; this provision implies that a visa holder has the right to respond or challengethe Minister’s suspicions by providing proof that they pass the test within the reasonable timeframe which is usually set out in the NOICC.5 As such, although the ultimate decision lieswith the Minister, communication with the visa holder is necessary to avail them anopportunity to defend their character.6As aforementioned, the Act 1958 sets out criteria for the character test which guide theMinister in determining the fate of the visa holder. The criteria set out under s 501 (6) (a) to(d) include: “a substantial criminal record, conviction for immigration detention offences,association with persons or organisations suspected of engaging in criminal conduct, past andpresent criminal or general conduct and significant risk in particular types of futureconduct”.7 Criminal conduct is determined by length or gravity of a sentence; that is, a personsentenced to death or life imprisonment, a sentence of 12months or more imprisonment, twoor more imprisonment terms which culminate in a total of 12 or more months imprisonmentand acquittal on ground of mental capacity which results in detention at a facility.85 Turner Coulson Immigration Lawyers, Character cancellation under section 501 (2017) Turner Coulson Immigration Lawyers http://tcilawyers.com.au/character-cancellation-under-section-501-2.html6 Alan Freckelton, Administrative Decision-Making in Australian Migration Law (ANU eText, 2015) 857 Australian Human Rights Commission, Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act (2013) Australian Human Rights Commission https://www.humanrights.gov.au/sites/default/files/document/publication/section_501_paper.pdf8 ibid
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