Australian Immigration Law: Visa Cancellation Case Study Analysis

This case study examines the cancellation of a permanent residency visa under Section 501(3) of the Migration Act 1958 (Cth) in Australia. It analyzes whether the decision made by the Assistant Minister for Home Affairs to cancel John's visa, due to his alleged ties with an Asian criminal organization, can be challenged. The study considers the applicability of Section 501(3), which allows the Minister or their delegate to cancel a visa if the person fails the character test, and whether the decision aligns with the national interest. It further assesses the application of Ministerial Direction No. 65, which provides guidelines for considering factors related to community protection and other relevant considerations. The analysis concludes that John may face challenges in contesting the decision unless there was a judicial error, as the Assistant Minister's decision appears to be within the bounds of the Migration Act and Ministerial Direction.

Running head: Australian Immigration Law
Australian Immigration Law

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Contents
Introduction.................................................................................................................................................2
Answer to (1)...............................................................................................................................................2
Applicability of section 501(3) of Migrations Act 1958 on the case........................................................2
Answer to (2)...............................................................................................................................................4
Application of Direction no .65. on the given case..................................................................................4
Conclusion...................................................................................................................................................5
Biography....................................................................................................................................................6

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Introduction
Section 501 of the Migration Act 1958(Cth) states that Minister or delegate may refuse to grant a
visa to a person if he does not satisfy the former regarding the character test. A Minister has the
right for cancellation of visa which has been granted to a person if in case the latter is suspected
to not pass the character test. Furthermore, the section is not applicable in the case if the person
does not satisfy the minister regarding the pass of the character test1.
So, in this assignment, the decision to cancel the visa of John by the assistant minister of home
affairs shall be reviewed in the light of Section 501(3)and directions no. 65 as per section 499 of
the Migrations Act 1958(Cth). It would also be analyzed if the decision would adversely affect
the legality of the decisions being made.
Answer to (1)
Applicability of section 501(3) of Migrations Act 1958 on the case
The case pertains to the cancellation of the permanent residency visa of John on the grounds of
his engagement in the Asian Criminal Organization in Sydney. The issue is associated with John
seeking advice if he can challenge the decision made on the basis of section 501(3).
Section 501 of Migration Act 1958 states that if a person has not passed the character test, then
the visa can be refused or cancelled. The objective of the act is to regulate the immigration and
the presence of non-citizens in the national interest of Australia. In order to facilitate this
objective, the Minister has the discretion of refusal or cancellation of visa provided that the visa
1 Federal Register of Legislation, Migration Act 1958(n.d.)< https://www.legislation.gov.au/Details/F2006B11706>

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holder has not passed the character test. 2As held in the case of Minister for Immigration and
Multicultural and Indigenous Affairs v George it was held that common rules of natural justice
will apply.
As per the character test, the visa holders must satisfy the decision makers that they can pass the
character test. In the case of not passing the character test, the decision makers have the
discretion to refuse the application or cancel the visa as held in Haneef v Minister for
Immigration and Citizenship3. The exercising of this discretion will comprise of a wide range of
factors like the expectations of the community, the link of the non-citizen to Australia or any
other applicable legal provisions and the type of crime committed4.
In order to serve the purpose of this act, the decision maker can include both the delegates of the
minister and the members of the Administrative Appeals Tribunal while conducting a review of
the decision made under section 501 of the Act.
So, in this case, John cannot challenge the decision on the basis that Honorable Linda Reynolds
CSC, being a member of the Federal Executive Council till 14/09/2017 has cancelled his
permanent visa. He has argued that she was appointed as Assistant Minister of Home Affairs as
on 28/08/2018 after the cancellation of his visa. Section 501(3) of Migration Act 1958 clearly
states that if the minister or his delegate reasonably suspects that the client does not pass the
character test and it satisfies that his decision is in the national interest, then he /she can possibly
refuse or cancel the visa5.
2 [2004]FCAFC 276.
3 [2007] FCA 1273
4 Sharon Pickering and Julie Ham, The Routledge Handbook on Crime and International Migration(Routledge,2017)
400.
5 Katja Franko Aas and Mary Bosworth ,The Borders of Punishment: Migration, Citizenship, and Social
Exclusion(OUP Oxford,2013) 100.

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The person would not be given a chance to comment prior to the decision and might not be given
the reasons why the decision was being made. However, the person may request to consider the
cancellation within 7 days of receiving the notice of cancellation. However, if the minister or
assistant minister or his delegates make a personal decision not to reconsider the cancellation, the
client shall not have the accessibility to merit review. The decision will only be considered if
there was a judicial error6.
So, John cannot challenge the decision made by the Honorable Linda Reynolds CSC.
Answer to (2)
Application of Direction no .65. on the given case
The issue pertains to the fact that it seems that the assistant minister has not strictly considered
direction no 65. in her decision to cancel the visa of John. So, John is seeking advice regarding
this fact that it would have an adverse effect on the legality of the decision being made.
As per the Ministerial Direction No.65, formal guidelines have been set by the former Minister
of Immigration and Border Protection in December 2014 which has provided the factors to be
considered and their method of application. The Direction has considered the Migration Act
1958 to empower the current provisions of character test7.
The Direction has categorized these factors into primary and other considerations. The decision
maker has to consider the circumstances applied on each consideration and determination of the
6 Law Institute Victoria ,Refusals and Cancellations Under s 501:Information for Criminal Lawyers( 3 January 2018) <
https://www.refugeecouncil.org.au/wp-content/uploads/2018/02/Section-501-Information-for-Criminal-
Lawyers.pdf>
7Amy Nethery ,’Partialism, Executive Control, and the Deportation of Permanent Residents from Australia ‘(2012)
18 Population, space and place 729,740.

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weight given to each of them leading to the balancing of the considerations to arrive at a
decision. The primary considerations pertain to safeguarding the community of Australia from
crime and serious conduct. It is also associated with the best interest of the minor children of
Australia and expectations of the community of Australia8.
As per the instructions of the Direction, upon the application of first consideration, the decision
maker should consider the seriousness and nature of the conduct of non-Australian and the risk
which is posed to the community of Australia in future. The other considerations must pertain to
the international non-refoulement obligations and its impact on the victims and interest of the
Australian business. It must also consider the extent of impairments if removed9.
Thus in the given case, as per the Direction no.65, the senator Honorable Linda Reynolds CSC
has considered the primary and other considerations in her decision. She has thoroughly
reviewed the considerations regarding the protection of the interest of community of Australia
from criminal or other serious misconduct. She has analyzed the seriousness of the misconduct
of John and the risk posed to the community in the future .So, John cannot challenge the legality
of the decision being made.
Conclusion
Hence to conclude, it can be said that the decision of the minister pertains to the refusal to grant a
visa to a person or cancellation of a visa which has been granted to a person. If the Minister is
satisfied that the refusal is in the nature of national interest and if he suspects that the person does
8Khanh Hoang and Sudrishti Reich,’ Managing crime through migration law in Australia and the United States: a
comparative analysis’(2017) 5(12) Comparative Migration Studies 2,24.
9Administrative Appeals Tribunal ,Ministerial Direction No.65: the considerations when refusing or cancelling visas
(2016)< http://www.aat.gov.au/about-the-aat/what-we-do/learn-more/ministerial-direction-no-65-the-
considerations-wh>

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not pass the character test, then he or his delegate may cancel the visa as per section 501 (3 )of
Migration Act 1958.

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Biography
Federal Register of Legislation, Migration Act 1958(n.d.) <
https://www.legislation.gov.au/Details/F2006B11706>
Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
Commonwealth Consolidated Acts, Migration Act 1958 - Sect 501(n.d.)<
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>
Pickering Sharon and Ham Julie, The Routledge Handbook on Crime and International
Migration(Routledge,2017).
Aas Katja Franko and Bosworth Mary ,The Borders of Punishment: Migration, Citizenship, and
Social Exclusion(OUP Oxford,2013) 100.
Law Institute Victoria ,Refusals and Cancellations Under s 501:Information for Criminal
Lawyers( 3 January 2018) <
https://www.refugeecouncil.org.au/wp-content/uploads/2018/02/Section-501-Information-for-
Criminal-Lawyers.pdf>
Nethery Amy ,’Partialism, Executive Control, and the Deportation of Permanent Residents from
Australia ‘(2012) 18 Population, space and place 729,740.

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Hoang Khanh and Reich Sudrishti,’ Managing crime through migration law in Australia and the
United States: a comparative analysis’(2017) 5(12) Comparative Migration Studies 2.
Administrative Appeals Tribunal ,Ministerial Direction No.65: the considerations when refusing
or cancelling visas (2016)<
http://www.aat.gov.au/about-the-aat/what-we-do/learn-more/ministerial-direction-no-65-the-
considerations-wh>