Visa Compliance, Cancellation and Review
Added on 2020-03-16
12 Pages2685 Words84 Views
Running head: VISA COMPLIANCE, CANCELLATION AND REVIEWVisa Compliance, Cancellation and ReviewName of the StudentName of the UniversityAuthor Note
1VISA COMPLIANCE, CANCELLATION AND REVIEWJohn Smithers being a New Zealand citizen has been granted Temporary subclass 444visa, which permits any New Zealanders to reside and work in Australia if the person remains acitizen of New Zealand. This visa does not entitle the holder with the same benefits and rightsthat an Australian citizen is entitled to enjoy. Although he is a successful employee in Toyota hehis personal behavior is unsatisfactory. John received a Notice of Intention to Consider Cancellation(NOICC) of his visa undersection 501(1) of the Migration Act 1958 on character grounds. According to section 501 of theMigration Act 1958 (Cth) (Migration Act), any visa of a non-citizen may be refused or cancelledif such holder has failed to convince the Minister for Immigration and Citizenship (the Minister)or a delegate of the Minister that they have passed the ‘character test’1. There are two essential decision-making process under section 501 where the Minister orthe delegate, at the first stage, must take into consideration of the fact whether the visa holder hassuccessfully passed the character test or the threshold test for refusal or cancellation. If theMinister or the delegate of the Minister were of the opinion that the holder has passed thethreshold test under section 501(1), (2) or (3) for cancellation or refusal of the visa, it would leadto the second stage of decision-making process that is stipulated under section 501 of theMigration Act 1958. In the second stage, the Minister or the delegate would make a decision whether theyshould implement their discretion to cancel or refuse the visa of the visa holder2. According tothe commencement of the Ministerial Direction No. 55, the Officers of the Department ofImmigration and Citizenship (DIAC) are required to comply with the Direction while making1 Migration Act 1958 (Cth).2Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. StanfordUniversity Press, 2014.
2VISA COMPLIANCE, CANCELLATION AND REVIEWcancelling or refusal decisions under section 501(1) and 501(2) of the Migration act 1958.However, the direction shall not be applicable to visa cancellation or refusal decision that theMinister has personally made. Although the Minister may refer to the direction while exercisinghis personal powers to make refusal or cancellation decisions, nevertheless, he is not obligated tofollow the Directions. Cancellation or Refusal by the Minister or delegate under section 501(1) or (2) of theMigration Act 1958 (Cth)According to section 501(1), the Minister is entitled to grant or refuse a visa if such personfails to convince that he/she passed the character test3. The visa can be cancelled under section501(2) of the Migration Act on the following grounds:The Minister is under rational suspicion that the visa holder/applicant has failed toqualify the character test;The visa holder/applicant failed to assure the Minister that he/she had passed thecharacter test.The Minister or a delegate may exercise its discretionary power conferred upon him bysection 501(1) and 501(2) of the Act4. Some of the DIAC officers usually act as the delegates ofthe Ministers while making such refusal or cancellation of visa decisions.3 Bucerius, Sandra M., and Michael H. Tonry, eds. The Oxford handbook of ethnicity, crime, and immigration.Oxford Handbooks, 2014.4Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and socialexclusion. Oxford University Press, 2013.
3VISA COMPLIANCE, CANCELLATION AND REVIEWCharacter TestUnder section 501 of the Migration Act states that a person is said to have failed thecharacter test on the grounds stipulated under section 501(6) (a) to (d) of the Migration Actwhich are enumerated as below:Substantial criminal record;Association with persons who is suspected to be involved in criminal conduct;Conviction for immigration detention offenses;Significant risk of any future conduct of similar types;Any present or past general or criminal conduct;Substantial Criminal record- A person is said to have substantial criminal record if such personhave been subjected to:Life imprisonment or death sentence;Imprisonment for 12 months or more;Total terms of imprisonments is two years or more;Acquittal of an offence on the grounds of insanity, unsoundness or have been subjected todetention; Any person who has a substantial criminal record shall not pass the character testautomatically irrespective of any justifying factors that was related to his/her offense5. Past or present, general or criminal conduct- under section 501(6) (c) of the Migration Act, ifthe present or past criminal or general conduct signifies the student does not have a good5 Stanley, Elizabeth. "Expanding crimmigration: The detention and deportation of New Zealanders from Australia."Australian & New Zealand Journal of Criminology (2017): 0004865817730858.
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