Legal Advice on Australian Immigration Law and Visa Regulations

This assignment provides legal advice on Australian immigration law, focusing on a case involving a New Zealand citizen, Sione, and his visa issues. It analyzes the application of Schedule 5 of the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017, particularly concerning Special Category Visas (SCV) and the character test under section 501 of the Migration Act 1958. The report examines the implications of Sione's criminal record, false statements in his visa application, and failure to pay legal costs. It discusses the provisions of Public Interest Criterion 4020 and the rights and options available to Sione, including potential visa applications and appeals. Furthermore, the report references the Legal Profession Regulation 2009 concerning legal costs and potential restrictions on future visa applications. This assignment provides a comprehensive overview of the relevant laws and regulations, offering insights into the complexities of Australian immigration law.

Running head: AUSTRALIAN IMMIGRATION LAW
Legal advice on Immigration law
Name of the student:
Name of the university:
Author note

1AUSTRALIAN IMMIGRATION LAW
Table of Contents
Title............................................................................................................................................2
Answer to question (a):..............................................................................................................2
Answer to question (b):..............................................................................................................4
Answer to question (c)...............................................................................................................6

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Title
Title of this assignment is Legal Effect of Australian Immigration Provisions.
Answer to question (a):
Certain provisions of the Migration law are included in this part. The main provision
is the schedule 5 of Migration Legislation Amendment (2017 Measures No. 3)
Regulations 20171. This provision is dealing with visa related problem of a New Zealand
citizen and containing certain provision regarding special return criteria. According to this
provision, the New Zealand citizen should meet the criteria provided under section 7 of the
Social Securities Act 1991. It has been observed from the case that Sione is a citizen of New
Zealand and holder of sub-class 444 visa. The nature of this visa is temporary and it is
granted for certain period of time and the purpose of this visa is to allow the visa holder to
implement the right to work or study in Australia. There are certain eligibility criteria stated
under the Sub-class 444 and the applicant must have to meet the same. One of the most
expectable grounds is that the holder should have to pass the character requirement. This
means, the applicant should not indulge himself in any criminal activities and should have a
valid New Zealand passport. However, it is to be mentioned that Schedule 5 of the Migration
Regulation is dealing with the eligible New Zealand citizen. The term eligible denotes that
the applicant should have to hold a special category visa. The term protected SCV holder is
prescribed under section 7 (2A) of the Social Securities Act 1991. A person who was present
in Australia on 26 the day of February 2001 is called as protected SCV holder. Sione was in
Australia from 1987 to 2016 and therefore, he is an SCV visa holder. However, it has been
learnt from the case that Sione had been charged for supplying illegal drugs in Australia and
1 Kitchen, Jonathan S. The employment of merchant seamen. Vol. 11. Routledge, 2017.

3AUSTRALIAN IMMIGRATION LAW
was imprisoned for twelve months. He was compelled to leave Australia for his visa
cancellation. The provision of visa cancellation has been engraved under section 501 of
Migration Act 1958. The immigration minister can cancel the visa on certain ground. It has
been stated under section 501 (1) and section 501 (2) that if the applicant or the visa holder
could not pass the character test and the minister is quite unsatisfied regarding his or her
character potentiality. The visa of a person can be cancelled if the minister is satisfied that the
national interest of the country can be get affected by that person. Certain points have been
stated under section 501 (7) of the Act regarding the character test. It is required that the
applicant has no substantial criminal record. Substantial criminal record means the person
must not be imprisoned for a term of 12 months or should not be charged for life time
imprisonment or sentenced for two or more terms of imprisonment2. Further, it has been
stated under this section that if the person is suspected to engage in criminal conduct, visa of
that person will be cancelled. In this given case, it has been observed that Sione had been
charged for drug peddling and got imprisonment for a period of twelve months and his visa
was cancelled due to this. Therefore, it can be stated that he had met all the requirements
mentioned under section 501 of the Migration Act 1958 (Cth). Further it has been observed
that the visa holder had remained in jail for twelve months. The offence for which he got the
imprisonment is also grave in nature. Therefore, his visa was cancelled under reasonable
ground. Drug peddling is a serious crime in Australia and the peddlers are treated as a threat
against the national security. It has also been observed that Sione was held liable for
additional two times and it is clear that he had failed to pass the character test as a whole. The
minister is responsible to protect the Australian from any offensive acts and all the power he
exercised under section 501 are given to him by section 499 of the Migration Act 19583.
2 Bradley, Curtis A., and Jack L. Goldsmith. Foreign Relations Law: Cases and Materials. Wolters Kluwer law & business,
2017.
3 Graber, Doris A., and Johanna Dunaway. Mass media and American politics. Cq Press, 2017.

4AUSTRALIAN IMMIGRATION LAW
However, certain conditions have been stated under the schedule 5 of Migration
Regulation for a person whose visa is cancelled under section 501 of the Migration Act 1958.
It is advised to Sione that he must not apply for another visa in which Special Return
Criterion 5001 is applicable. It is also been advised to him that he may apply for another visa
or may return to the Australia if the mandatory cancellation of his visa can be revoked. Sione
is also advised to mention any legitimate purpose for applying for visa for the provision of
Human Rights (Parliamentary Scrutiny) Act 20114. The visa of Sione has been cancelled
mandatorily under section 501 (3A) of the Act. However, Sione can apply for another sub-
class 444 visa as it is stated under 5.15 A of the Migration (Amendment) Regulation that a
person is not prohibited to apply for a sub-class visa if it has been cancelled under section
501 (3A) of the Migration Act5.
Answer to question (b):
In this given case, it has been observed that Sione has ticked the no option in respect
of the question whether he has any criminal record in Australia or not. This step of him has
come under the purview of Public Interest Criterion 40206. It is to be decided whether the
application of Sione has attracted the provision of this criterion or not. A visa can be
cancelled if the applicant had made any false statement in the application or has submitted
any false document with the application. The criterion can be applied on the skilled migration
visa, business or student visa, temporary visa and family visa7. According to the main
4 Ozyurek, Sherene, and Rodger Fernandez. "Combatting fraud as a disincentive of an unintended economic migrant: A
comparative review of the direct Turkish model and the indirect Australian model." Border Crossing 6.1 (2016): 16-26.
5 Gillers, Stephen, et al. Regulation of Lawyers: Statutes and Standards, 2017 Supplement. Wolters Kluwer Law &
Business, 2016.
6 Jacobson, Chris, et al. "Mainstreaming indigenous perspectives: 25 years of New Zealand’s Resource Management Act."
(2016): 331-337.
7 Farbenblum, Bassina, and Laurie Berg. "Migrant workers’ access to remedy for exploitation in Australia: the role of the
national Fair Work Ombudsman." Australian Journal of Human Rights (2017): 1-22.

5AUSTRALIAN IMMIGRATION LAW
objective of the visa, an applicant must have to provide a clear statement regarding his
identification. If the applicant becomes unable to satisfy the criteria mentioned under this
provision, he or in case his family members had done any mistake regarding the same, that
particular member will have to face fine for non-fulfilment of proper criterion. It has been
mentioned under this provision that the applicant may be prohibited for ten years to apply for
any visa. On the other hand, it has been observed that if the applicant or any of his family
members has provided any misleading document, the applicant will be restricted to make
further visa application for three years. In case of Sione, it has been observed that his visa
was cancelled under section 501 (3A) of the Migration Act 1958. He was caught for peddling
prohibited drugs and was imprisoned for a period of twelve months. Therefore, he has a
substantial criminal record and his visa was cancelled on mandatory basis. However, when he
had attempted to apply for another visa, he had given certain misstatements in the application.
It has been observed that he had stated that he had no criminal liability. By this statement, it
is clear that he had met the criteria under the Public Interest Criterion 4020. He had not only
hidden the fact regarding his conviction for drug peddling, but had been convicted previously
for two more offences. Therefore, it is obvious to state that he had been guilty for making
misleading and false statement in the visa application form.
However, it can be advised to him that he has certain options in this case. He can get
certain reasonable times to justify his options and can narrate the reasons for making such
decision or misstatement in the form8. Further, he will get a review option so that he goes
before the Migration Review Tribunal. However, this option is only available in case the visa
application has been cancelled9.
8 Newbold, Greg. Crime, law and justice in New Zealand. Routledge, 2016.
9 Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for Temporary Migrant Workers so
Fraught? A Perspective from Australia." (2016).

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Answer to question (c)
All the visa related matters in Australia are governed by the Migration Act 1958 and
Migration Regulation 1994 (Cth). An applicant should have to comply with all the
information stated in these provisions and a person can be prohibited from applying other
visa in case of non-fulfilment of those provisions10. In this given case, it has been observed
that Sione was caught for supplying illegal drugs and sent for twelve months imprisonment
for the same. After that, he had made an appeal in the court where the application was
cancelled and the court had imposed a certain fine on him in the form of legal cost. However,
it has been observed that he had returned to New Zealand and his visa was cancelled
subsequently.
There are certain rights provided under the Legal Profession Regulation 2009 that are
provided to the persons or individual as against the legal cost. In case, Sione has no money to
meet the payment and he could not able to pay the debt, two issues will be cropped up
regarding the same. the first issue is whether he will be restricted to make any application for
visa and the second issue is whether he has any right to deal with the matter or not.
Failure to pay the legal cost relating to criminal offence is a crime in Australia.
Therefore, it is required to pay the debts and legal cost properly. Further, it has been stated
that if a person could not able to pay the fine imposed on him or if he has been convicted
under any criminal offence, he will be restricted to hold any Special Category Visa any more.
In addition, he has to seek permission from the Department of Immigration and Border
Protection for further application for visa11.
10 Faulkner, David. "Discrimination Based on SCV Holder Immigration Status: The Systemic Removal of Rights from New
Zealanders in Australia." Browser Download This Paper(2015).
11 Williams, George, and Daniel Reynolds. "The operation and impact of Australia's parliamentary scrutiny regime for
human rights." Monash UL Rev. 41 (2015): 469.

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However, he has certain rights too that can be exercised in case of non-payment of
legal cost. He can make an appeal to the Department of Immigration and Border Protection
for narrating his condition and reason for non-payment. He may get an option to negotiate
with the department so that they can reduce the liability by considering the present status of
the individual (in this case Sione). Further, he will get an opportunity to express his content
before the Migration Court and he has to make the statement in writing. According to section
291 of the Legal Profession Regulation 2009, the person will get a notice from the authority
where the defence statements are prescribed in a systematic way. He can opted for cost
assessment, however, it is the discretionary power of the authority whether they can reduce
the amount or retain the same. According to section 288 of the Legal Profession Regulation
2009, Sione may request for setting aside the order for cost and if he can properly satisfy the
authority, his prayer can be accepted and he has not to pay a single penny for that. Sione has
no problem to make an application for sub-class 444 visas again, but he has to contact with
the authority for reducing the payment by showing reasonable cause12.
12 Williams, George, and Daniel Reynolds. "The operation and impact of Australia's parliamentary scrutiny regime for
human rights." Monash UL Rev. 41 (2015): 469.