Victoria Uni: Migration Law Visa Cancellation Report LML6005

This report provides a comprehensive analysis of a visa cancellation case under Australian migration law, focusing on the scenarios of Wei and Phey. The report begins with a submission to the Minister of Immigration, outlining the reasons for non-cancellation of their visa applications, including Wei's past imprisonment, his subsequent good behavior, his company's measures to prevent future incidents, and the critical medical condition of their grandchildren. The submission emphasizes that Phey was unaware of Wei's past. The report then delves into the legal framework, referencing the Migration Act 1958, particularly sections 48, 501, and 140, discussing the implications of visa cancellation on character grounds and the limitations on applying for other visas. It examines the Rokobaini case to illustrate the application of discretion under section 501. The report concludes by assessing the probability of success in appealing the visa cancellation, highlighting Wei's reformed conduct, the grandchildren's medical needs, and the supporting documentation provided. Finally, the report addresses the obligations of migration agents under the Migration Act 1958, specifically the code of conduct, emphasizing the agent's responsibilities to provide accurate advice, maintain client confidentiality, and ensure proper record-keeping. The report includes references to relevant legislation and case law.

MIGRATION LAW

Table of Contents
Part I...........................................................................................................................................4
Part II..........................................................................................................................................7
Part III........................................................................................................................................8
References................................................................................................................................13

Part I
To,
The Minister
Immigration Department
Australia
Sub: addressing reasons which should be considered for non-cancellation of visa application
of Wei and Phey.
Respected Sir,
I have provided present submission to you in order to highlight the reasons relating to non-
cancellation of via application of Wei and Phey. As, a letter has been received by them from
Department of Affairs indicating that visa application of Wei has been cancelled on the basis
of character grounds under section 501 of Migration Act 1958. The applications relating to
visa cancellation or refusal as per section 501 are reviewed centrally by Visa Application
Character Consideration Unit1. It has been specified in section 501 (7) specifies that character
test is applied to reverse the onus of proof and believes that visa holder is not having good
character. Moreover an individual is considered having substantial criminal record in case
they fulfil any of condition specified in section 501 (6) (a) as follows:
 has been sentenced to death
 Punished for imprisonment for whole life.
 Imprisoned for 12 months or more2
 Acquitted for offense on the basis of unsoundness of mind or insanity.
1 Administrative Decision-Making in Australian Migration Law. (8th February 2020).
Australian National University.< http://press-files.anu.edu.au/>
2 Refusal or cancellation of visa on character grounds. Migration Act 1958 – Sect 501. 25th
Feburary 2019. Commomwealth Consolidation Acts. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>

 Any other specified reason.
In present case Wei’s visa application has been cancelled on the ground that he had been
imprisoned for 2 years in past. Further, as Phey is his wife and having association with
person having substantial criminal record, her visa application has been cancelled as per
assertions of section 140 (1) of Migration Act. But the fact required to be considered is
that Phey did not know about above stated fact. Further, in accordance with assertions of
section 501 C Migration Act 1958, if Minister applies his personal power in order to
cancel any visa application, he is required to provide application to affected person as
well as invite to make adequate representation to be provided relating to revocation of
cancellation. The causes to be considered for non-cancellation are as follows:
 Wei was imprisoned for two years but released before six months of completion
of punishment due to his good behaviour. Further, after that incident he also
implemented procedure in his company to assure that no such conduct occurs
again and has grown successful business in legal manner.
 The grand children of Wei and Phey i.e. Lily have been diagnosed due to severe
Autism. Lily is having close relation with both of them and requires special
concern due to illness.
 Wei and Phey has been looking after Lily each time whenever possible through
Visitor (Subclass 600) visa. As the condition is critical now, they cannot continue
visiting in same manner.
 As no other option is available with Wei and Phey accept except requesting for
revocation of cancellation of visa. Moreover, no conviction has occurred by after
the specified incident of imprisonment.
 Wei is operating a successful business, in case it extends its operation in Australia,
it would be beneficial for economy as well. Further, Wei and Phey will not only
take care of their grand children Lily but will also be able to provide financial
support to them.
It is a genuine request to minister that above discussed reasons should be considered prior
to cancellation of visa application of Wei as well as Phey. Further, the reason behind
cancellation of visa of Phey is that having relation with a person having substantial
criminal record. Moreover she is not having any criminal record or any other grounds on
the basis of which her application could be cancelled.

Even additional attachments have been provided i.e. medical certificates of Lily which
proves that the grand children seriously require special concern and care. These specified
medical certificate are adequate proof representing the critical health condition of Lily
and represent that she does required support and concern in order to improve her health
condition. The documents relating to Wei’s business comprising annual returns, etc
representing that he has been loyal in accomplishing his responsibility as genuine and
responsible citizen have been also provided to ensure the clean character of Wei. Lastly, it
is requested to the minister to kindly consider above reason and revoke cancellation of
visa application.
Date:
Signature:
Migration Agent:
Attachments:
 Medical Certificate
 Business Documents

Part II
As per section 48 of the Migration Act 1958, an individual is eligible to file application of
another visa, in case visa application is cancelled in any situation except refusal is related to
section501, 501A, or 501B3. These prescribed sections are related to passing of character test.
For accomplishment of these tests, it is essential that applicant should not have significant
criminal record. Along with this, according to Migration Act 1958, subsection (1A), non-
citizen of Australia who does not possess substantive visa and whose visa application has not
been denied on the surroundings of failure tests explained under section 501,501A, or 501B4.
In the given case, it has been assessed that after filing of application, Wei had a criminal
record. He was convicted for a period of 2 years but due to good behaviour he was released
after one and half year. Wei is received a Notice of Intention to Consider Refusal of their visa
application under section 501.
According to migration rules and regulations, if a visa of person is cancelled as per section
501, then in such case –
 He/she is prohibited for application of other visa except protection visa or a removal
pending bridging visa, at the time of in Australia.
 If the person is removed from Australia after cancellation of their visa, then in such
case they are not eligible to be permitted most forms of visas, if reason behind
cancellation of such types of visa is significant criminal record, past or current
criminal records, and combination of past and present criminal records.
Further, Section 140 of Migration Act 1958, specified that in case visa application of an
individual is cancelled on the basis of another person on the character grounds specified
3 Visa cancellations under section 501 (character grounds). (8th March 2020).Legal Services
Commission of South Australia < https://lawhandbook.sa.gov.au/ch24s01s07s01.php>
4 Migration Regulations 1994

in section 501 it is deemed to be consequential cancellation5. The discretion under section
501 could be accessed through decision made in case of Rokobaini v Minister for
Immigration (1999) FCR 583, in which appellant was charged for various robbery cases.
The final decision was in favour of department and applicant was deported. The last
opportunity available with Phey was Bridging visa which does provide lawful status to
non-citizen who would otherwise be unlawful6. But the option is available only in case
visa application is not cancelled on character grounds. As, visa application of Wie and
Phey has been cancelled on character grounds. Thus, they cannot apply for any other visa
and have only option to request minister to revoke their cancellation.
Part III
Significant probability of success does exist of response to the Minister for Immigration
in relation to potential section 501 refusal. The reason behind same is that although after
being imprisoned for two year, he was released before completion of punishment due to
his good behaviour. Further, he also took adequate steps in his business so that no such
conduct is repeated in future. Moreover, no similar conduct has been acted by him. Even
the condition of grandchildren is severe and she genuinely requires additional care and
concern. Overall, the reasons provided for revocation of cancellation are genuine, thus it
is expected that minister would consider the same and do as needful.
5 Migration Agents Regulations 1998. (13th March 2019). Federal Register of Legislation. <
https://www.legislation.gov.au/Details/F2017C00943>.
6 Peter, Billings, and Hoang Khanh. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia.", pp..
Springer, Singapore, (2019). In Crimmigration in Australia , pp119-148

Even additional evidences relating to medical condition of Lily as been provided in order
to assure that they are not faking. Along with same business documents and income
returns of Wie has been provided for assuring that he has a clean character and does have
capability to provide positive outcome in relation with Australian economy through its
business. Thus, it would be appropriate to state that it is probable that minister would
revoke the cancellation.
Obligation as per code of conduct specified in Migration Act 1958
Section 314 of Migration Act 1958 asserts code of conduct for migration agent which
aims to develop adequate standard for conduct of registered migration agent 7. Further,
the obligations under the code of conduct as immigration agent are specified below:
 Agent is required being fit and proper person in order to immigration assistance.
He is required to be a person who has integrity and good character.
 As per the provision specified in clause 2.3 of code of conduct, migration agent is
required to accomplish his obligation in accordance with provision provided in
law. Further, in case operations are conducted in more than one country than he is
required to comply with statute of other countries as well in competent and fair
manner8.
 It is necessary to make continue effort to enhance the standard of migration advice
profession within Australia as well as international communities.
7 Sophie Manera,. "Mandatory Cancellation of Visas Pursuant to Section 501 of the'Migration
Act 1958'(Cth)." (2019). Brief 46, no. 11 (2019): 32.
8 Lillian, Robb, . "From Cancellation to Removal: The Protection of Migrants of'Bad
Character'in Australia." (2020). American University International Law Review 35, no. 2: 4.

 Migration agent is required to ensure that no representation relating to provision
of services are provided which are false or misleading and adequately disclosed
along with applicable charges.
 It is responsibility to assure that right, dignity and respect of client and other
individuals is recognized.
 He has to act with integrity by being honest and genuine in all professional
business dealings. It is necessary to provide clear communication with client and
assure that client does have access to qualified interpreter in case he requires.
Moreover, client has to make payment relating to interpreter or any other
additional service.
 Migration agent is empowered to accept monies on behalf of client and make
adequate provision relating to received payment from client9.
 It is the responsibility of agent to not to disclose or allow to be disclosed any
confidential information relating to client or its business unless same is requested
by law. The agent is required to provide a copy of consumer guide and record
same so that evidence could be provided that specified requisite was
accomplished10.
 After receipt of instruction from Department of affairs, it is necessary to inform
same to client and not to carry out further obligations in a manner which enhances
9 Code of Conduct for registered migration agents. (8th March 2020). Australian
Government. Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
10 Migration Act 1958

the cost to the client. No work should be carried by the agent in a manner which
increases the cost of client11.
 It is necessary for agent to maintain proper records which can be available for
inspection at the request of department when necessary. It comprises copy of
application of client and written communication between agent and client. Further,
the documents of client should be maintained in safe manner and to be dealt as per
instructions of client.
 Migration agent is required to supervise the work carried out by staff or agent in
appropriate manner relating to purpose of immigration advice and assistance12.
In present case the requirements would be addressed through giving adequate advice to Wie
and Phey regarding proving their innocent character. Thus, adequate advice would be given
relating to documents and certificates which should be submitted by them so that the chance
of revocation of their refusal increases. Further, a record should be maintained relating to
written communication between agent and the client. In case any intimation letter is received
by the agent than same should be informed to the client within reasonable time. In case the
probability of approval of visa application does not exist than facts should be provided to
client and no fake probability should be presented to the client. It is necessary that agent
should not take any step which is personally beneficial to him and should make adequate
attempt to provide appropriate advice to the client. Even the staff and gent should provide the
11 MIGRATION AGENTS REGULATIONS 1998 - SCHEDULE 2. (8th March 2020). Common
wealth Consolidation Regulations. <
http://classic.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>
12 Migration Agents Regulations 1998

code prominently in agent’s office. Further, it is the responsibility of agent to assure that his
employees are of good character. Overall, in present case of Wie and Phey, agent is required
to provide each information received from Ministry of Affairs to client within required time
so that they can take further action in accordance with same. Moreover, agent is having no
right to hide information from client for attaining personal profit in form of fees, etc.

References
Administrative Decision-Making in Australian Migration Law. (8th February 2020).
Australian National University.< http://press-files.anu.edu.au/>
Billings, Peter, and Khanh Hoang. "Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment and Removal from Australia.", pp..
Springer, Singapore, (2019). In Crimmigration in Australia , pp119-148
Code of Conduct for registered migration agents. (8th March 2020). Australian Government.
Department of Immigration and Border Protection.<
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
Manera, Sophie. "Mandatory Cancellation of Visas Pursuant to Section 501 of the'Migration
Act 1958'(Cth)." (2019). Brief 46, no. 11 (2019): 32.
MIGRATION AGENTS REGULATIONS 1998 - SCHEDULE 2. (8th March 2020). Common
wealth Consolidation Regulations. <
http://classic.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>
Migration Agents Regulations 1998. (13th March 2019). Federal Register of Legislation. <
https://www.legislation.gov.au/Details/F2017C00943>.
Refusal or cancellation of visa on character grounds. Migration Act 1958 – Sect 501. 25th
Feburary 2019. Commomwealth Consolidation Acts. <
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
Robb, Lillian. "From Cancellation to Removal: The Protection of Migrants of'Bad
Character'in Australia." (2020). American University International Law Review 35, no. 2: 4.
Visa cancellations under section 501 (character grounds). (8th March 2020).Legal Services
Commission of South Australia < https://lawhandbook.sa.gov.au/ch24s01s07s01.php>
Legislation
Migration Act 1958
Migration Regulations 1994
Migration Agents Regulations 1998