Graduate Diploma in Migration Law: Anna Do Visa Cancellation Analysis

This report analyzes a case concerning the cancellation of Anna Do's student visa (subclass 500) under the Australian Migration Act 1958. The analysis focuses on the legal basis for the cancellation, specifically Sections 116 and 501 of the Act, and the discretionary powers of the Minister for Immigration and Border Protection. The report examines the factual background, including criminal charges against Anna Do, and assesses the validity of the visa cancellation. It discusses the ambiguity of the legal parameters, the role of the Administrative Appeals Tribunal (AAT), and Anna's ability to challenge the decision. Furthermore, the report explores how Anna's intention to not return to her course could contribute to the visa cancellation. The report concludes by comparing the criteria for visa cancellation under Sections 116 and 501, highlighting the discretionary nature of Section 116 and the potential implications for individuals in similar situations.

Running head: GRADUATE DIPLOMA IN MIGRATION LAW
GRADUATE DIPLOMA IN MIGRATION LAW
Name of the Student
Name of the University
Author Note

1GRADUATE DIPLOMA IN MIGRATION LAW
Factual Background
Anna Do’s student visa (subclass 500) was canceled due to findings of the Minister for
Immigration and Border Protection determining that she is a risk to the health, safety and good
order of the Australian community. By virtue of this finding her visa was canceled under Section
116 (1) (e) of the Migration Act, 1958 which would effectively make her an unlawful non-citizen
and she would be compelled to be detained in immigration detention till the court determines if
she must be removed or if her visa should be reinstated1. The crux of the delegate’s findings was
based on the various criminal charges brought against her relating to an incident that resulted in a
person’s death. She was also not registered to practice as a healthcare professional when she was
accused of these crimes.
Question 1
Anna Do and her husband are from china and were residing in Australia since 2013. This
was when Anna procured a student visa (subclass TU 573) to undertake her nursing course
within the confines of Australia. Thus she could legally reside in Australia till such visa expired.
Subsequently she enrolled for a translation and interpretation course and continued to reside in
Australia by virtue of a second student visa (subclass 500) was granted to her by the authorities.
Thus, in effect, she had a valid visa to reside within the jurisdiction of the Australian
commonwealth till June 2018. Anna was employed at a beauty clinic and her employer was a
surgeon who had knowledge of the world of medicine and surgeries. During a particular
procedure at the clinic, she administered a lethal dose of anesthetics on her employer causing his
1 Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership in a changing
world. Brookings Institution Press, 2013.

2GRADUATE DIPLOMA IN MIGRATION LAW
death. She was subsequently charged with manslaughter under the Crimes Act, 1900, use of
substances that resulted in death under Section 39 of the Crimes Act, 1900 and hindering of
investigations that related to the acts of another person under Section 315 (1) (a) of the Crimes
Act, 19002. She was subsequently released from custody on remand due to not being convicted
of any offence. She has further stated that her act was due to the instructions of her employer (the
victim) who was an experienced professional in the medical field. Moreover, Anna was
employed at a beauty clinic and not a hospital so she did not need to be registered as a healthcare
professional for the same. Visas can be cancelled by virtue of Section 116 or Section 501 of the
Migration Act, 1958. Section 501 of the act was introduced through the amendments made to the
act in December 2014 and describes specific circumstances under which a person’s visa may be
cancelled3. Section 116 of the act however has been in force before the enactment of Section 501
and provides for a wider ambit of powers conferred upon the Minister for Immigration and
Border Protection. These powers are so inadequately worded that the powers conferred through
them can be inferred as discretionary and arbitrary. Section 116 (1) of the act gives the Minister
for Immigration and Border Protection the right to cancel visas if he is satisfied that certain
circumstances provided for by the act do exist in the current scenario4. Section 116 (1) (e) states
that a visa could be cancelled by the Minister for Immigration and Border Protection if the
minister is satisfied that the presence of the visa holder in Australia would be a risk to health and
safety and good order of the Australian Community5. These parameters are ambiguous and do
not have adequate judicial pronouncements to provide for interpretation of each and every
individual case. In a lot of cases the decision of the Minister for Immigration and Border
2 Crimes Act, 1900.
3 Migration Act, 1958.
4 Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and social
exclusion. Oxford University Press, 2013.
5 Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-266.

3GRADUATE DIPLOMA IN MIGRATION LAW
Protection could be majorly discretionary and would still in effect lead to the removal of the
individual from Australia’s territorial jurisdiction. The procedure for such removal is that the
person is served with a Notice of Intention to Cancel (NOIC) and the person must respond to the
same within 5 working days6. The person may also be taken into immigration detention, this
would lead to a faster disposal of the case as they must show cause and refute the cancellation,
which determines the viability of the cancelation of such a visa within four hours. In case the
decision to cancel is upheld the individual immediately becomes an unlawful non-citizen and
would be detained in immigration detention till that person is removed from Australia or may
even be imprisoned further if there were criminal trials against the person which are determined
in the affirmative. The person has a right to appeal this decision by applying to the Migration and
Refugee Division of the Administrative Appeals Tribunal (AAT) within 7 working days through
the payment of an application fee. Here the person would have to plead to the tribunal’s
satisfaction regarding him/her not being a risk to health, safety an order in Australia and the
reasons for affirming the reasons for not cancelling his/her visa outweigh the reasons for
cancellation7. It is important to note here that no concrete criminal conviction is required to
establish the Minister for Immigration and Border Protection’s belief of an individual being such
a risk. Thus, Anna, due to the criminal charges brought about against her is liable to have her
visa cancelled by the Minister for Immigration and Border Protection and it would be a legally
valid cancellation. Moreover the criminal charges brought against her were grave and despite her
claiming that she was acting as an agent of her employer it cannot be sufficiently affirmed as the
employer was no longer alive to be cross-examined. Anna also did not respond to the NOIC and
thus lost her ability show cause. Thus, the findings against her, though widely discretionary and
6 Freilich, Joshua D., and Moshe Addad. Migration, culture conflict and crime. Routledge, 2017.
7 Piper, Nicola. "International Migration and Gendered Axes of Stratifi cation: Introduction." New Perspectives on
Gender and Migration. Routledge, 2013. 15-32.

4GRADUATE DIPLOMA IN MIGRATION LAW
arbitrary, are allowed by statutory law and do entitle the Minister for Immigration and Border
Protection to cancel her visa. Anna could not successfully refute such a decision by the Minister.
Question 2
As stated in the background facts of the case Anna’s student visa (subclass 500) was
cancelled by the Minister for Immigration and Border Protection due to criminal charges brought
against her the gravity of which would make her a threat/risk to health, safety and good order
within the Australian Commonwealth. This visa was cancelled by virtue of Section 116 (1) (e)
which states that the Minister for Immigration and Border Protection may cancel a visa if he is
satisfied that the person is or would be a risk to the health, safety or good order of the Australian
community8. However, the same can be refuted as the parameters stated for such a determination
as prescribed by the act are vague and ambiguous. The determination thus gives widely
discretionary powers to the Minister for Immigration and Border Protection and can be
challenged on the grounds that Anna was never actually convicted of any crimes. This legal
challenge however would have to be well established as the act does not have any limitations on
the powers of the Minister for Immigration and Border Protection as conferred by the provisions
of Section 116 of the Act9. Anna has however declared before the tribunal that she would not be
returning to her interpreting and translating course by virtue of which her second student visa
(subclass 500) was granted to her by the authorities. This could be construed as an intention that
goes against her student visa as the visa is granted purely because of the educational endeavor
mentioned by the applicant. Further, Section 116 (1) (a) confers a power of cancellation on the
Minister for Immigration and Border Protection in case the visa in question was grated wholly or
8 Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers and working holiday
makers in Australia." Journal of Ethnic and Migration Studies 40.12 (2014): 1915-1933.
9 Sonn, Christopher C., et al. "Negotiating belonging in Australia through storytelling and encounter." Identities 21.5
(2014): 551-569.

5GRADUATE DIPLOMA IN MIGRATION LAW
partly owing to a fact or circumstance and that fact or circumstance was no longer in existence10.
Anna’s student visa (subclass 500) was granted based on the fact that she would be pursuing a
translation and interpretation course in Australia. Under the present set of circumstances she
would no longer be pursuing the interpretation and translation course and has made it clear that
she has no intention of returning to the same. In such an event the fact or circumstance that lead
to the approval of her visa is no longer in existence and thus it is liable to be canceled as per the
provisions of Section 116 (1) (a) of the Migration Act, 195811. If the Minister for Immigration
and Border Protection cancelled her visa by virtue of Section 116 (1) (a) there would be no
chance to refute the same as it has been adequately and precisely provided for the act and does
not leave room of liberal or discretionary interpretation. Thus her intention to not return to the
course does act as contributing factor to the cancellation of her visa even though the authorities
have not identified or recognized the same and have cancelled her visa by virtue of Section 116
(1) (e) of the act12.
Question 3
It has been discussed above that as per the provision of the Migration Act, 1958 visas that
are approved can be cancelled by virtue of Section 116 and Section 501 of the Act. Section 501
of the act mandates that a visa can be cancelled if the person applying or holding the visa fails
the mandatory character test (which means they have a substantial criminal record) and/or the
person is presently subject to full-time imprisonment13. For the purposes of this section it has
10 Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in Australia:
introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.
11 Argent, Neil, et al. "The amenity principle, internal migration, and rural development in Australia." Annals of the
Association of American Geographers 104.2 (2014): 305-318.
12 Mantu, Sandra. Constructing and imagining labour migration: Perspectives of control from five continents.
Routledge, 2016.
13 Tang, Angelina Zhi Rou, et al. "Where are the overseas graduates staying on? Overseas graduate migration and
rural attachment in Australia." Applied geography 53 (2014): 66-76.

6GRADUATE DIPLOMA IN MIGRATION LAW
been determined that a substantial criminal record would mean that the person has been subject
to 12 months imprisonment at least. Thus the criteria prescribed under Section 501 of the act are
adequately clear about the circumstances that would lead to such a cancellation. For the
purposes of Section 116 however, especially Section 116 (1) (e) are not clearly defined and are
majorly discretionary14. As per Section 116 (1) (e) the criminal record held by the person does
not have to be substantial (as provided for the purposes of Section 501), a visa holder also does
not have to explicitly be convicted of a crime and a person whose out on bail and remand can
also have their visas cancelled by virtue of this section15. Thus pending criminal charges or
criminal allegations which have not been established can be sufficiently applied as criteria for
cancellation of the visa under the provisions of Section 116 of the act. Thus the charges brought
against Anna (though not amounting to conviction) would be sufficient to lead to a cancellation
of her student visa (subclass 500) by the Minister for Immigration and Border Protection or his
delegate16. This is what has happened in the present scenario and cannot be refuted by Anna as
there aren’t any protections afforded by the act for such a cancellation.
14 Ombudsman, Commonwealth. "The Department of Immigration and Border Protection: The administration of
Section 501 of the Migration Act 1958." Canberra, Australia: Commonwealth Ombudsman (2016).
15 Pickering, Sharon, and Julie Ham, eds. The Routledge handbook on crime and international migration. Routledge,
2017.
16 Castles, Stephen, Hein De Haas, and Mark J. Miller. The age of migration: International population movements in
the modern world. Palgrave Macmillan, 2013.

7GRADUATE DIPLOMA IN MIGRATION LAW
Bibliography
Statutes
Crimes Act, 1900.
Migration Act, 1958.
Articles
Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship,
and social exclusion. Oxford University Press, 2013.
Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership
in a changing world. Brookings Institution Press, 2013.
Argent, Neil, et al. "The amenity principle, internal migration, and rural development in
Australia." Annals of the Association of American Geographers 104.2 (2014): 305-318.
Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in
Australia: introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.
Castles, Stephen, Hein De Haas, and Mark J. Miller. The age of migration: International
population movements in the modern world. Palgrave Macmillan, 2013.
Freilich, Joshua D., and Moshe Addad. Migration, culture conflict and crime. Routledge, 2017.
Mantu, Sandra. Constructing and imagining labour migration: Perspectives of control from five
continents. Routledge, 2016.

8GRADUATE DIPLOMA IN MIGRATION LAW
Ombudsman, Commonwealth. "The Department of Immigration and Border Protection: The
administration of Section 501 of the Migration Act 1958." Canberra, Australia: Commonwealth
Ombudsman (2016).
Pickering, Sharon, and Julie Ham, eds. The Routledge handbook on crime and international
migration. Routledge, 2017.
Piper, Nicola. "International Migration and Gendered Axes of Stratifi cation: Introduction." New
Perspectives on Gender and Migration. Routledge, 2013. 15-32.
Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers
and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40.12
(2014): 1915-1933.
Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-
266.
Sonn, Christopher C., et al. "Negotiating belonging in Australia through storytelling and
encounter." Identities 21.5 (2014): 551-569.
Tang, Angelina Zhi Rou, et al. "Where are the overseas graduates staying on? Overseas graduate
migration and rural attachment in Australia." Applied geography 53 (2014): 66-76.