Migration Law || Assignment

Running Head: MIGRATION LAW
Migration Law

Running Head: MIGRATION LAW
An employee nomination scheme subclass 186 visa is a permanent residency visa that is
often awarded to skilled workers. This subclass of Visa has no strict application restrictions as it
is available for both applicants living in Australia as temporary residents and also to those
outside the country. However, it is essential to note that for a person to eligible for this type of
Visa, they must be skilled and must be nominated by an Australian employee. 1A holder of an
ENS visa provided permanent residence by under the migration act, including some of their
dependent family members. This provides that the holder can work and live in any place of their
choice in Australia. Even though this kind of Visa is granted to an individual based on their skill
in a particular occupation, it does not necessarily restrict one to seek and maintain employment
in that line of profession.
In the case presented here, Marcus Boone seeks advice on whether there is a possibility
of having his ENS visa canceled. Well, under the Australian migration act, an ENS visa can be
canceled based on certain conditions. 2Section 137Q of the Migration Act 1958 clearly outlines
some of the issues that may lead to the cancellation of an ENS visa. First and foremost,
subsection 1 indicates that when employment does not commence, the ministry may cancel such
kind of a visa. The department is mandated to cancel an ENS if it is satisfied that the holder did
1 Billings, Peter, and Khanh Hoang. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia."
In Crimmigration in Australia, pp. 119-148. Springer, Singapore, 2019.
2 Boon-Kuo, Louise. Policing undocumented migrants: law, violence and responsibility.
Routledge, 2017.

Running Head: MIGRATION LAW
not begin employment under the period provided by the rules and regulations. Also, cancellation
may happen if the ministry is satisfied that the person did not make a genuine effort to
commence employment upon the stipulated time. Subsection 2 of section 137Q of the migration
act provides that the ministry can cancel an ENS if it is satisfied that the holder commenced
employment that was previously referred to in that particular employee nomination whether
within or not in the time allocated. Also, if the employment was terminated within the period
required for actual employment. Subsection 3 of 137Q off the Migration act also indicates that
any visa with the definition of a regional sponsored visa may lead to the cancellation on an ENS
visa.
As depicted above, there are certain circumstances and conditions that can lead to the
cancelation of an ENS visa. 3Based on the case presented here, there is no any probable reason
that the department may use to cancel Marcus’ visa. All the conditions provided in section 137Q
of the migration Act 1958 can be used to as a means to cancel the visa is they are not fully
adhered to.
Any decision to cancel a visa will entirely depend on the case officer that handles one's
case. An employer will provide the department of immigration with the relevant information but
will have no say on the possible outcome of a case. 4The law does not provide an employee with
3 Freckelton, Alan. Administrative Decision-Making in Australian Migration Law. ANU Press,
2015.
4 Lester, Eve. Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia.
Cambridge University Press, 2018.

Running Head: MIGRATION LAW
an ability to influence the decision making process on a case. However, neither a migration agent
nor the department of immigration will provide advice on whether the Visa will be canceled
before the actual termination of employment.
A Notice of intention to consider cancellation of a visa may be sent to anyone who the
department of human affairs considers to be on the grounds of cancellation of a visa. This has
been stipulated in the Australian Migration Act 1958. The department of Homeland security does
this to give the holder time to respond to their migration status. This is a grace period that the
department provides for a holder to lodge their complaint and respond to why their Visa should
not be canceled in the first place.
In the event where Marcus Borne receives a notice of intention to consider cancellation of
his Visa, which is possible, then he must act accordingly. This is so because of the previous
mistake of not completing work on the reference letter, thereby not contributing to regional
Australia. It is possible because of some of the aspects mentioned in section 116 of the Migration
Act-1958. This section of the migration Act that gives the minister and any other relevant
authority the power to consider for and cancel a visa. These conditions are; a breach of visa
conditions, failure to fully comply with the visa conditions, providing incorrect information on
purpose upon visa application and cancellation to protect the safety, health, and good order of the
Australian people.
In this case, there has been an issue of failure to fully comply with visa conditions of the need to
contribute to regional Australia. Most of Marcus' friends have been issued with a notice to
consider cancelation. He's in a threat, and this could affect him. As such, when the notification
arrives, the Migration act also provides time to respond to the notice. A notice to consider

Running Head: MIGRATION LAW
cancellation under these grounds there is usually a time provided to respond. 5The provided time
for a person to respond upon cancelation on section 116 grounds is five working days. When a
holder fails to respond within this provided time, the department goes ahead and makes an
unfavorable decision. 6This is so because it has not been provided with any evidence of not to.
However, there is also an extension of exactly five days in the case where the holder seeks to
reconsider his first decision.
A valid notice to consider cancellation must have certain aspects in it. It should include
the details of the nature of legal activities and the evidence held by the department regarding the
illegal activities mentioned. There should also be an invitation to make comments and present an
argument to the department and relevant evidence to support your case. Finally, the time limit to
respond to the mentioned case is also indicates in the document. It should be noted that a
response to the NOICC should be considered as an opportunity to tell the department the reasons
why the Visa should not be canceled. 7A holder that receives a NOICC should act swiftly and
contact the department regarding the condition of the Visa. Mr. Marcus Borne should, therefore,
act accordingly in case he gets a notice to consider the cancellation of his Visa.
5 Manera, Sophie. "Mandatory Cancellation of Visas Pursuant to Section 501 of the'Migration
Act 1958'(Cth)." Brief 46, no. 11 (2019): 32.
6 Phillips, Janet, and Harriet Spinks. Immigration detention in Australia. Department of
Parliamentary Services, Parliamentary Library, 2013.
7 Timpson, Richard. "Character-based visa cancellation." Proctor, The 36, no. 8 (2016): 16.

Running Head: MIGRATION LAW
Bibliography
Books and Articles

Running Head: MIGRATION LAW
Billings, Peter, and Khanh Hoang. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia."
In Crimmigration in Australia, pp. 119-148. Springer, Singapore, 2019.
Boon-Kuo, Louise. Policing undocumented migrants: law, violence and responsibility.
Routledge, 2017.
Freckelton, Alan. Administrative Decision-Making in Australian Migration Law. ANU Press,
2015.
Lester, Eve. Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia.
Cambridge University Press, 2018.
Manera, Sophie. "Mandatory Cancellation of Visas Pursuant to Section 501 of the'Migration Act
1958'(Cth)." Brief 46, no. 11 (2019): 32.
Phillips, Janet, and Harriet Spinks. Immigration detention in Australia. Department of
Parliamentary Services, Parliamentary Library, 2013.
Timpson, Richard. "Character-based visa cancellation." Proctor, The 36, no. 8 (2016): 16.