Visa Compliance and Cancellation

Abdul and Yasmin have applied for a Contributory Parent visa sub-class 143 in Australia. However, Abdul's criminal record has become an issue. This study material discusses the character cancellation under section 501, submission to the Minister, advice to Abdul and Yasmin, and the probability of success of response.

Visa Compliance and Cancellation
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Table of Contents
Case Scenario.............................................................................................................................3
Character Cancellation under Section 501.................................................................................4
1. Submission to the Minister..............................................................................................4
2. Advise to Abdul and Yasmin..........................................................................................6
3. Probability of Success of Response................................................................................8
References................................................................................................................................10
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Case Scenario
Abdul Ahmed has been successfully involved in infrastructure business in Malaysia for past
40 years and he takes projects from Malaysian government as well as from local
governments. His daughters are Australian citizens as they were sponsored to Australia by an
accounting company. One of his grandchildren named Heather whose age was 7 years, has
been diagnosed with severe Down Syndrome. As Heather is very close to Abdul and Yasmin,
they fly to Australia to be with her and due to this reason; they have applied for a
Contributory Parent visa sub-class 143.
The Contributory Parent visa (sub-class 143) permits the parents to reside in Australia if
their child is a citizen of Australia or is permanent resident of Australia. The applicants can
apply for the Contributory Parent visa (subclass 143) in two years of their residing in
Australia on 173 visas in case they prefer to live in Australia on permanent basis.1 In order to
apply for Subclass 143, the applicant must have a temporary Contributory Parent visa
(subclass 173) and must fulfil all the standards appropriate to that visa (subclass 173), which
include child must be Australian citizen residing legally in the country for minimum two
years; must have a sponsor; must fulfil the family test and must also fulfil the health and
character requirements.2
First of all, they have applied for Contributory Parent visa (subclass 143), it is essential that
they must have met the criteria under Contributory Parent visa (subclass 173).3 The criteria
under this subclass require meeting the medical and character requirements of the applicant.
1 Aussizz Migration & Education Consultants, Australian Visa for Parents | Parent
Visa Australia | Aussizz Group (2018) Aussizz Group
<https://www.aussizzgroup.com/india/contributory-parent-visa-subclass-173-and-143>.
2 Australia Government, Visa Compliance (2018) Studyinaustralia.gov.au
<https://www.studyinaustralia.gov.au/english/live-in-australia/visa-compliance>.
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When after one year of applying for visa, Abdul and Yasmin were asked to undergo health
and character checks. The police clearance of Abdul revealed that he had a criminal record
then on what basis, they were allowed under subclass 173 in the country. It was revealed that
Abdul had been convicted for corruption and was provided 2 years imprisonment but he was
free after 11/2 years because of his good conduct; however, he has not considered it to be as
bribe.
Character Cancellation under Section 501
There are 2 steps of decision taking to be followed under section 501 of the Migration Act. At
the first step, the Minister or delegating authority are required to consider that the individual
justifies the character test which is measured as threshold test for the refusal of visa
application under subsection 501(6) and if they get contented that the threshold test under
subsection 501(1), (2), or (3) for the refusal has been fulfilled.4 The second step involves the
Minister or their delegate to take decision to use their prudence to refuse the visa of the
individuals. The Minister might refuse to allow visa or might cancel it under section 501(3) if
3 Australian Human Rights Commission, 5 Can A Person Seek Review Of A Decision
Under Section 501 To Refuse Or Cancel A Visa? | Australian Human Rights Commission
(2018) Humanrights.gov.au <https://www.humanrights.gov.au/publications/background-
paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-4>.
4 Australian Human Rights Commission, 4 What Are The Human Rights Issues Raised
By Refusal Or Cancellation Of Visas Under Section 501? | Australian Human Rights
Commission (2018) Humanrights.gov.au
<https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-
raised-visa-refusal-or-cancellation-under-sectio-3>.
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he or she does not satisfy the Minister regarding their character test and even the Minister is
contented that the refusal of visa would be in national concern.5
1. Submission to the Minister
The visa application by Abdul and Yasmin should not be refused under Section 501 of the
Migration Act. There are various concerns about the human rights of the individuals whose
applications for visas are refused under section 501 of the Migration Act.6 Due to Visa refusal
under section 501, it results in the parting of parents from their children. When the visa of
parents gets refused, they cannot reside in Australia and it affects the life of their children to a
greater extent.
It depends on the circumstances that an individual can be relevant to the Administrative
Appeals Tribunal (AAT) for reconsideration of the virtues of decision after the denial of visa
application under section 501 of the Migration Act. However, as the decision has been made
by the Minster as submission is to be provided to the Minister, merit review by the AAT is
not possible. But, the Minister possesses power to leave behind the decision taken by the
DIAC officer following section 501 under certain circumstances. It is required that the
Minister should reserve the original decision regarding positive or negative for the applicant.7
5 Australian Human Rights Commission, 2 When Can a Visa Be Refused or Cancelled
Under Section 501? | Australian Human Rights Commission (2018) Humanrights.gov.au
<https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-
raised-visa-refusal-or-cancellation-under-sectio-1>.
6 Australian Visa Bureau, Australia Contributory Parent Visa - Australian Visa Bureau
(2018) Visabureau.com <http://www.visabureau.com/australia/contributory-parent-
visa.aspx>.
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The Minister is considered as the highest authority and their decision to cancel or refuse visa
to be reviewed by the AAT.
Under Section 501 of the Migration Act, if a person fails the character test occurring within
the mentioned bases under subsections 501(6) (a) to (d) which are;
 considerable criminal record
 imprisonment for immigration custody crimes
 relationship with crime suspects
 Previous or existing criminal conduct
 major risk of specific types of criminal behaviours in future
Abdul have considerable criminal record as he was convicted for corruption and was
sentenced for 2 years but released only after 11/2 years due to his good conduct. So, these
justifying factors might be taken into consideration if the decision maker considers if to use
the prudence to reject the visa of an individual. In the process of making that decision, the
delegate of the Minster could set out a number of primary concerns and various other
concerns under Direction No. 55.8
The primary considerations under Direction No. 55 that could be taken into consideration are
the welfare of small children. While deciding about refusal of a visa, the decision taking
authority must consider the additional primary concerns of power, period and temperament of
the individual association with Australia. However, other considerations are of less
7 Department of Home Affairs, Visa Conditions (2018g) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>.
8 Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018d)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-
sheets/79character>.
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significant than the primary consideration, the immediate family of the individual can be
affected due to the refusal of the visa application.
Taking into consideration all these facts, the Minister should not refuse the visa application of
Abdul and Yasmin as their grand child needs them when she is suffering from Down
Syndrome and is close to them. However, her parents are there to look after her but she is
emotionally attached to her grandparents because of which they have to travel every now and
then to be with her. Considering these specific serious circumstances, they should be allowed
to apply for visa of Australia under Contributory Parent visa (sub class 143).9
2. Advise to Abdul and Yasmin
To apply for Contributory Parent Visa, an individual must be the parent of the Australian
citizen. If the application of visa is denied, Abdul and Yasmin could apply for other visas as
well. As they are elderly parents of citizens of Australia, they can apply for Contributory
Aged Parent (Migrant) visa (subclass 864) or Contributory Aged Parent (Temporary) visa
(subclass 884)also.10
For Contributory Aged Parent (Migrant) visa (subclass 864) as well as Contributory Aged
Parent (Temporary) visa (subclass 884), it is essential to fulfil the age criteria, which is
eligibility of pension age in Australia. The age of more than 65 years is essential and the
individual should be sponsored by their children. However, there is requirement of fulfilling
9 Department of Home Affairs, Fact Sheet - Contributory Parent (2018e)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-
sheets/39contributory-parent>.
10 Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018d)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-
sheets/79character>.
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medical and character aspects, you will be required to submit police certificate when
requested to by the department. There are certain circumstances under which, the Department
or the Minister can use good judgment not to refuse visa.11 It is under discretionary powers
and Ministerial Direction 65 that the Minister or their delegate decides regarding refusal or
acceptance of the visa application. While taking this decision, numbers of factors are taken
into consideration such as safety of the Australian community, expectations of the Australian
community, welfare of minor children of the applicant in Australia who might get affected by
a decision to refuse the visa of the individual, legal obligations of the country towards other
countries, influence of denial of visa on family of the individual residing in Australia as well
as impact on Australian business interests.
Taking into consideration, all these aspects it is evident that Abdul and Yasmin can also
apply for other visas but the character requirement would be mandatorily satisfied by them.
As Abdul had been convicted for two years, there is no provision to approve his character
requirement and no justification could be placed. However, submission to the Minister might
get approved and refusal order might be revoked because Minster is considered as the highest
authority and their decision cannot be challenges.12 Considering good behaviour of Abdul, he
was released from jail after 11/2 years. Moreover, he had done number of charitable acts in
his life which should also be taken into consideration. He had not been convicted ever since
and should be provided fair opportunity to prove that he has now become a good person.
11 Department of Home Affairs, Contributory Parent Visa (Subclass 143) (2018b)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-1/143->.
12 Department of Home Affairs, Complying with Your Obligations (2018c)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/complying-with-your-
obligations>.
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Furthermore, he has been in business for 40 years now and had never been found involved in
criminal acts. So, visa application should be approved by the Minister.
3. Probability of Success of Response
Abdul and Yasmin are highly worried about the likelihood of success of the response to the
Minister regarding the possible section 501 refusal.13 The responsibilities under the Code of
Conduct incidentally would be to provide assistance to the applicants related to the
provisions.
It depends on the discretion of Minister if he or she would consider the application of the
applicants based on the circumstances being faced by their immediate family in Australia.
Under Ministerial Direction 65, the Minister or their delegate could consider the submission
of Abdul and Yasmin considering the serious medical condition of their grandchild and for
the best interests of their grandchild; the Minister might allow their application. However,
they have fulfilled all the criteria under the visa application requirements; the character
requirement of Abdul has become an issue. As he had been convicted for more than 12
months, his character is not satisfactory for the visa application requirement. However, it
might be considered by the Minister that he had been released 6 months before his release
because of his good conduct.14 Furthermore, he had never been found involved in any
criminal acts since then and has been in business successfully and take government contracts
as well. It means the government of Malaysia has no doubt regarding his integrity and
13 Department of Home Affairs, Contributory Parent (Temporary) Visa (Subclass 173)
(2018a) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/Trav/Visa-1/173->.
14 TSS Immigration, Visa Cancellations | TSS Immigration (2018)
Tssimmigration.com.au <https://www.tssimmigration.com.au/services/detail/visa-
cancellations>.
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trustworthiness and he has become a person with good conduct now.15 Additionally, he is
doing number of charitable activities in Malaysia and Singapore currently and is utilizing the
profits from his business in variety of charitable acts all over the country.
Thus, the probability of success of their response to the Minister is good. If the Minister
would consider the medical conditions being faced by the family of applicants in Australia
and need of their presence in Australia, they would allow their application.16 As their
grandchild needs them in serious medical condition, they should be allowed by the Minister
to go to Australia to be with their 7 year old child. Furthermore, on the ground of his good
conduct and charitable activities all over the country and in Singapore, the character
requirement satisfaction should not be taken into consideration and he should be given a fair
chance to be good and act well. Above all, they want to stay in Australia to be with their
grandchild who is suffering from serious medical condition, so there are high hopes that
Minister would allow their request and they will be able to clear the mandatory requirements
for visa approval of Australia. Under the ethical code of conduct, it would be the mandatory
duty to provide them with high hopes that the response will be successfully accepted by the
Minister. Otherwise, judicial review can also be taken into consideration for the further
actions against refusal of visa application. So, there are other options as well and Abdul and
Yasmin should not be extremely concerned about probability of success of their act. In this
condition, they should not lose hope and should depend on the discretion of the Minister for
15 Oz Kiwi Association, Section 501 Visa Cancellation Process Submission (2018)
Aph.gov.au <https://www.aph.gov.au/DocumentStore.ashx?id=f2a6d9e4-dc7f-44e6-a708-
bcd14adfbf91&subId=565379>
16 Turner Coulson Immigration Lawyers, Visa Refusals | Turner Coulson Immigration
Lawyers Sydney (2015) Turner Coulson Immigration Lawyers Sydney
<https://www.tcilawyers.com.au/visa-refusals.html>.
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the best interests of their immediate family residing in Australia. They should get prepared
for other options as well if their submission is refused by the Minister and they should
prepare documents to be presented during judicial review if the submission is refused.
References
Australia Government, Visa Compliance (2018) Studyinaustralia.gov.au
<https://www.studyinaustralia.gov.au/english/live-in-australia/visa-compliance>
Australian Human Rights Commission, 2 When Can a Visa Be Refused or Cancelled Under
Section 501? | Australian Human Rights Commission (2018) Humanrights.gov.au
<https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-
raised-visa-refusal-or-cancellation-under-sectio-1>
Australian Human Rights Commission, 4 What Are The Human Rights Issues Raised By
Refusal Or Cancellation Of Visas Under Section 501? | Australian Human Rights
Commission (2018) Humanrights.gov.au
<https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-
raised-visa-refusal-or-cancellation-under-sectio-3>
Australian Human Rights Commission, 5 Can A Person Seek Review Of A Decision Under
Section 501 To Refuse Or Cancel A Visa? | Australian Human Rights Commission (2018)
Humanrights.gov.au <https://www.humanrights.gov.au/publications/background-paper-
human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-4>
Australian Visa Bureau, Australia Contributory Parent Visa - Australian Visa Bureau (2018)
Visabureau.com <http://www.visabureau.com/australia/contributory-parent-visa.aspx>
Department of Home Affairs, Contributory Parent (Temporary) Visa (Subclass 173) (2018a)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/Trav/Visa-1/173>
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Department of Home Affairs, Contributory Parent Visa (Subclass 143) (2018b)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-1/143>
Department of Home Affairs, Complying with Your Obligations (2018c) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/complying-with-your-obligations>
Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018d)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-
sheets/79character>
Department of Home Affairs, Fact Sheet 79 - The Character Requirement (2018e)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/about/corporate/information/fact-
sheets/79character>
Department of Home Affairs, Fact Sheet - Contributory Parent (2018f) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/
39contributory-parent>
Department of Home Affairs, Visa Conditions (2018g) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
Immigration, TSS, Visa Cancellations | TSS Immigration (2018) Tssimmigration.com.au
<https://www.tssimmigration.com.au/services/detail/visa-cancellations>
Oz Kiwi Association, Section 501 Visa Cancellation Process Submission (2018) Aph.gov.au
<https://www.aph.gov.au/DocumentStore.ashx?id=f2a6d9e4-dc7f-44e6-a708-
bcd14adfbf91&subId=565379>
Turner Coulson Immigration Lawyers, Visa Refusals | Turner Coulson Immigration Lawyers
Sydney (2015) Turner Coulson Immigration Lawyers Sydney
<https://www.tcilawyers.com.au/visa-refusals.html>
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Aussizz Migration & Education Consultants, Australian Visa for Parents | Parent Visa
Australia | Aussizz Group (2018) Aussizz Group
<https://www.aussizzgroup.com/india/contributory-parent-visa-subclass-173-and-143>
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