Australian Visa Cancellation Review Process

This assignment delves into the process of reviewing canceled visas in Australia. It examines the legal basis for visa cancellation decisions by the Ministry or delegate, highlighting instances where court rulings can overturn those decisions if they violate existing laws. The document outlines specific timeframes for filing review applications, specifying deadlines of nine days and varying application windows depending on whether an individual is in custody or not. It also details the avenues for review, namely the Administrative Tribunal or the High Court of Australia, emphasizing the tribunal's expedited seven-day judgment deadline.

Running head: MIGRATION LAW
Migration Law
Name of the student:
Name of the university:
Author note

1MIGRATION LAW
To
Department of Border and Immigration Protection
Australia
Sub. Application towards non-cancellation of visa on character ground.
Respected Sir,
With due respect and humble submission, I would like to inform you that the visa our
client hold is temporary in nature and the character of the visa attracts the provision of sub
class 444 visas. He was working in the provinces of Australia. The department has decided to
cancel the visa by following up the rules mentioned under section 501 of the Migration Law
1958 based on the following grounds:
The Migration Act that has been enacted in the year 1958 governs the problem
regarding the visa matter1. The department is fulfilling its responsibilities for many years in
this ground and has been made a number of legislations to deal with the related matters
systematically. The Act has provided certain grounds regarding the cancellation of visa of the
non-Australian citizens. The reason behind the same is to control the rate of crime done by
the non-resident of Australia and to secure the national safety of the nation2.
The provision of section 501 of the Migration Act has provided certain grounds
regarding the cancellation of visa. The provision of the visa has been applied to every non-
resident of Australia even if the person is living in the provinces of Australia for l.ong. it has
been stated under the Migration Act that if the concerned authority regarding the migration or
1 Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford
University Press, 2014.
2 Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. "Defying the law of gravity: The political economy
of international migration." World Politics 66.3 (2014): 406-445.

2MIGRATION LAW
the ministry had cancelled the visa of any non-resident, the same could not be appealed
before any competent court or tribunal.
The visa of a person can be cancelled on the ground of character test3. It has been
stated under the provision of section 501 that if the ministry acknowledge the fact that the
character of the visa holder does not satisfied the limitations that are being mentioned under
the section 501 (6) of the Act, the ministry has a choice to cancel the visa of the person 4. It
has also been stated that it is the discretionary power of the ministry to cancel the visa of the
person in case he has failed to qualify the necessary grounds mentioned under section 501 (6)
of the Act.
The visa holder can get the option to apply for cancellation of visa on certain
humanitarian grounds. The applicant may have certain review options to deal with the
problems. The first option is merit review that can be applied before the Administrative
Appeals Tribunal. The second option is judicial review that can be filed before the Federal
court or High Court. The third and the last option regarding the same is the minister’s
discretionary power over the cancellation.
Option may also accrues regarding the ministerial decision number 65, it can be stated
that the non-citizens have the power to revise the order of cancellation. A request has been
made to the Department of Immigration and Border Protection that the power to cancel the
visa is a discretionary power. It is also to be stated that the family members of my client will
be hugely affected if the visa was cancelled, as my client is the only earning member.
3 Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for Temporary Migrant
Workers so Fraught? A Perspective from Australia." (2016).
4 Markus, Andrew. "Australia’s Immigrants: Identity and Citizenship." Citizenship in Transnational
Perspective: Australia, Canada, and New Zealand (2017): 225.

3MIGRATION LAW
Regards
Date:
Part B
It has been stated under section 501 of the Migration Act that if the visa of a person
being cancelled on the ground of failure of character test, all the bridging visas of the person
will be cancelled automatically5. It has also been stated that the person will not be allowed by
the law to make an appeal against the same. However, this system infringes the provision of
the human rights and it has been noticed that the persons have to face dilemmas regarding the
same. It may cause serious injustice to the persons and the person has to leave his job and
residence and sometimes, has to face detention for staying in the provinces of Australia
illegally6.
It has been observed from the recent report that in the year 2016, almost 697 have lost
their visa with sub-class 444. It has been held by many social workers that the arbitrary
cancellation of visa on the ground of section 501 infringe the personal right of the people. It
has also decided under the law that the alleged person will not be able to apply for any visa
further within the provinces of Australia7. There are other risks regarding the cancellation of
visa is that the person may has to face illegal detention within the custody of Australia. There
5 Coyle, Ian, and Patrick Keyzer. "The Removal of Convicted Noncitizens from Australia: Is There Only a
‘Minimal and Remote’Chance of Getting it Right?." Alternative Law Journal 41.2 (2016): 86-88.
6 Billings, Peter. "Whither Indefinite Immigration Detention in Australia: Rethinking Legal Constraints on the
Detention of Non-Citizens." UNSWLJ 38 (2015): 1386.
7 Francis, Ronald D. "Immigration Reports to Date." Birthplace, Migration and Crime. Palgrave Macmillan UK,
2014. 37-54.

4MIGRATION LAW
is also certain possibility regarding the violation of the article 17 and 23 of ICCPR as the
immediate effect of the cancellation will force the visa holder to push back to New Zealand
and the person will be separated from the family members8. In recent past, it has been
observed that the rate of detention regarding the visa cancellation increased gradually. In
Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79, it has been held that
the provision of section 501 is applicable on the person who are living in Australia for a long
term. It has been observed by United Nation in case of Nystrom et. al v Australia [2004] that
provision of section 501 is, for certain extent, infringe the personal right of a person.
However, it has been stated that the person may review the decision of the ministry
and filed an application before the Administrative Appeals Tribunal regarding the same. They
have also certain opportunities to challenge the legal enforceability of the decisions made by
the ministry of immigration. It is to be stated in this case that the decision made by a delegate
or the officer can be reviewed by the court or the tribunal but the decision made by the
minister cannot be review by the court or tribunal.
There are certain other provisions engraved under the direction no. 65 provision
under the Migration Act 1958. It has been stated under the direction that an order to revoke
the visa order can be re-decided if the impacts of such cancellation on the visa become
detrimental. Various grounds has been stated that can protect the interest of the non-citizens
in this case and it has been observed that the back record of the offender should be taken into
consideration.
The process of review by the Administrative tribunal is based on certain rules. The
tribunal usually review all the matters decided by the ministry and analyse the decision taken
8 Oldfield, Yvonne. "Australia's guestworkers? A discussion of the rights of New Zealand citizens to enter,
reside and work in Australia." (2014).

5MIGRATION LAW
in the matter. If the court or the tribunal thought that the matters are not according to the
provision of law, it can set aside the decision of the delegate. In certain circumstances, it has
been observed that the ministry set aside the decision taken by them and reconsider the
application to provide further visa made by the person9.
The visa holders will get certain other opportunities as against the cancellation of
visa. It has been decided that the High Court of Australia has the power to deal with the
decisions taken by the ministry or the delegate regarding the cancellation of visa10. If the
court has opined that the decision of the ministry affected the valid provisions of the law, the
decision of the ministry can be set aside.
There are certain time limitation prescribed regarding the review application and it
has been mentioned that in case of alteration regarding the review for the cancellation of the
visa under section 501 of the Migration Act should be filed within nine days of such
decision11. The application can be filed before the Administrative Tribunal or the High Court
of Australia. The tribunal has to deliver its judgment within seven working days. The
persons who are in custody will get seven days for making review and the persons who are
not in the prison can apply for visa within 28 days.
9 Billings, Peter. "Whither Indefinite Immigration Detention in Australia: Rethinking Legal Constraints on the
Detention of Non-Citizens." UNSWLJ 38 (2015): 1386.
10 Phillips, Janet, and Joanne Simon-Davies. Migration to Australia: a quick guide to the statistics.
Parliamentary Library, 2016.
11 Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. "Defying the law of gravity: The political economy
of international migration." World Politics 66.3 (2014): 406-445.

6MIGRATION LAW
Reference:
Billings, Peter. "Whither Indefinite Immigration Detention in Australia: Rethinking Legal
Constraints on the Detention of Non-Citizens." UNSWLJ 38 (2015): 1386.
Coyle, Ian, and Patrick Keyzer. "The Removal of Convicted Noncitizens from Australia: Is
There Only a ‘Minimal and Remote’Chance of Getting it Right?." Alternative Law
Journal 41.2 (2016): 86-88.
Coyle, Ian, and Patrick Keyzer. "The Removal of Convicted Noncitizens from Australia: Is
There Only a ‘Minimal and Remote’Chance of Getting it Right?." Alternative Law
Journal 41.2 (2016): 86-88.
Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. "Defying the law of gravity: The
political economy of international migration." World Politics 66.3 (2014): 406-445.
Francis, Ronald D. "Immigration Reports to Date." Birthplace, Migration and Crime.
Palgrave Macmillan UK, 2014. 37-54.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global
perspective. Stanford University Press, 2014.
Mares, Peter. "Locating Temporary Migrants on the Map of Australian
Democracy." Migration, Mobility, & Displacement 3.1 (2017): 9-31.
Markus, Andrew. "Australia’s Immigrants: Identity and Citizenship." Citizenship in
Transnational Perspective: Australia, Canada, and New Zealand (2017): 225.
Markus, Andrew. "Australia’s Immigrants: Identity and Citizenship." Citizenship in
Transnational Perspective: Australia, Canada, and New Zealand (2017): 225.

7MIGRATION LAW
Oldfield, Yvonne. "Australia's guestworkers? A discussion of the rights of New Zealand
citizens to enter, reside and work in Australia." (2014).
Phillips, Janet, and Joanne Simon-Davies. Migration to Australia: a quick guide to the
statistics. Parliamentary Library, 2016.
Stanley, Elizabeth. "Expanding crimmigration: The detention and deportation of New
Zealanders from Australia." Australian & New Zealand Journal of Criminology (2017):
0004865817730858.
Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for
Temporary Migrant Workers so Fraught? A Perspective from Australia." (2016).
Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for
Temporary Migrant Workers so Fraught? A Perspective from Australia." (2016).