Case Study: Legally Challenging Visa Cancellation under Migration Act

This case study delves into the scenario of Michael Nguyen, whose permanent residency visa was canceled by Senator Hon. Linda Reynolds CSC under s 501(3) of the Migration Act 1958 due to his alleged ties with the Triads. The analysis explores whether Michael can challenge this decision based on the Assistant Minister's authority, the lack of adherence to Direction no. 65, and potential challenges against a decision made by Hon. Peter Dutton MP. It examines relevant sections of the Migration Act, including sections 499 and 501, to determine the legality and potential for successful appeal, highlighting the importance of the character test and the limited grounds for challenging ministerial decisions in visa cancellations. The document concludes that while challenging a decision made directly by the Minister is difficult, errors in the application of guidelines like Direction No. 65 may provide grounds for appeal. Desklib provides similar solved assignments and past papers for students.

Case Study Assessment

Table of Contents
Introduction................................................................................................................................................3
1] Challenging decision undertaken by Assistant Minister..................................................................3
2] Lack of abidance of Direction no. 65.................................................................................................4
3] Challenging cancellation of Hon. Peter Dutton MP..........................................................................6
Conclusion.................................................................................................................................................8
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Introduction
Migration Act 1958 is an essential legislation of Australian Constitution that helps in
resolving issues associated with migration. In case certain individuals do not satisfy the
requirement under as specified under the legislation, the visa application for the nation
would not be approved.
Considering this fact, focus of the present assignment would be on the case of Michael.
The fact that Senator Hon. Linda Reynolds CSC has canceled his permanent residency
visa would be dealt with under this assignment.
1] Challenging decision undertaken by Assistant Minister
In order to determine whether Michael can challenge the decision given by Senator
Hon. Linda Reynolds CSC, section 499 [1] of Migration Act 1958 may be taken into
consideration. Under this section of the act, it has been stated that, Parliamentary
Sectary can be appointed with the intention of administering the department along with
the Minister. From this context, it can be stated that, Senator Hon. Linda Reynolds CSC
along with Hon. David Coleman MP can participate in the decision making process of
the department. From this perspective under section 499 [1] of Migration Act 1958,
Michael’s appeal to challenge the decision of Senator Hon. Linda Reynolds CSC based
on the ground that Minister for Immigration, Citizenship and Multicultural Affairs can
make the decision personally would be difficult to sustain1.
Furthermore, under Section 499 [1] it has been stated the Minister is entitled under this
section of the act to provide with written directions to a body or individual or power
regarding, a] performing the particular functions and b] for exercising the allocated
power2. In this regards as well, it may be stated that, if Michael is willing to challenge the
decision given by Senator Hon. Linda Reynolds CSC because under the legislation
Hon. David Coleman MP would be required to take decisions, he may fail to challenge it
1 MIGRATION ACT 1958 - SECT 499Minister May Give Directions (2019) austlii.edu.au
<http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s499.html>.
2 Migration Act 1958 (2019) Legislation.gov.au <https://www.legislation.gov.au/Details/C2017C00284>.
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based on this ground. The reason being, Hon. David Coleman MP have provided
Senator Hon. Linda Reynolds CSC with the authority to take decisions that is within the
law.
It can be further well established with the help of Section 496 [1] of the act under which
it has been stated that as Minister is entitled to delegate her or his power by providing
with written consent to any person of the Minister’s power, as specified under this act3.
Thus, under this act, Hon. David Coleman MP if delegates his power to Senator Hon.
Linda Reynolds CSC, based on which, she has exercised her powers, such act an act
would be considered to be completely constitutional and challenging such act on the
part of Michael would be difficult. It is worth mentioning here that, the specified section
of the act is restricted to written sign of the Minister.
However, Section 496 [1A] of the act has no such restriction. Under this section of the
act, it has been stated that, delegate can utilize power delegated under Section 496 [1]
that is subjected to directions of the Minister. Hence, under Section 496 [1A] of the act,
based on the directions of Hon. David Coleman MP, if Senator Hon. Linda Reynolds
CSC acts accordingly, which, does not contradict the aspects of the legislation, Michael
cannot challenge her decision based on this ground that under the act, Minister is
required to take actions4.
2] Lack of abidance of Direction no. 65
In order to determine if, lack of consideration of Direction no.65 by Assistance Minister
would negatively affect the decision made, one of the essential aspect that is needed to
be focused is whether Assistant Minister is bound by the regulation of Direction no. 65.
In order to determine if Assistant Minister is bound by Direction no. 65 Section 499 of
Migration Act 1958 may be taken into consideration. Under section 499 of the act, it has
been stated that members of Federal Executive Council having the eligibility and are
appointed by State Ministers for administering Migration Act and resolve issues of the
3 MIGRATION ACT 1958 - SECT 496Delegation (2019) austlii.edu.au
<http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s496.html>.
4 Administrative Decision-Making In Australian Migration Law (2019) anu.edu.au
<http://press-files.anu.edu.au/downloads/press/p318861/html/ch02.xhtml?referer=82&page=4>.
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department has the authority of giving directions under their arena of power. In this
process of giving directions, specifications under Direction no. 65 do not bound the
individual holding the chair. From this context, it may be stated that under section 499 of
the act, Assistant Minister is not bound by Direction no. 65. Hence, lack of its abidance
on the part of Senator Hon. Linda Reynolds CSC would not have significant impact on
the provided judgment.
In order to further establish this fact, section 499 (2) of the act may be taken into
consideration that states that Direction no. 65 bounds the Tribunal and delegates. This
further reestablishes the fact that, as Senator Hon. Linda Reynolds CSC is a member of
senate, lack of adherence to the Direction would not have much impact on her decision.
that the ground based on which, Senator Hon. Linda Reynolds CSC canceled Michael’s
visa is needed to be discussed5. In this regards, it can be noticed that the ground of
cancellation of his visa was his association with Triads an Asian criminal organization
operating in Sydney. It is because of his associated with the organization, it has been
considerate that he may pose threat to the Australian community.
In this context, if Direction no. 65 is taken into consideration, it can be observed that
particular goal term has been specified. It is on observation of that, the individual has
been subjected to the goal term, and mandatory visa cancelation can be performed.
The goal term that has been specified under direction 65 for mandatory visa can
cancellation is 12 months single sentence threshold. From this context, however, it can
be noticed that through Michael was having an association with criminal organization,
he has not been sentenced for 12 months single sentence for any such offences, which
is the threshold for mandatory visa cancellation6.
On the part of Senator Hon. Linda Reynolds CSC as this factor of mandatory visa
cancellation as specified under Direction no. 65 has not been taken into consideration, it
would result in having adverse impact on the legality of the decision made on her part.
5 Ministerial Direction No.65: The Considerations When Refusing Or Cancelling Visas (2016) Aat.gov.au
<http://www.aat.gov.au/about-the-aat/what-we-do/learn-more/ministerial-direction-no-65-the-considerations-
wh>.
6 Bochenski V Minister For Immigration And Border Protection [2016] FCA 989 (2016) jade.io
<https://jade.io/article/488754>.
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In such cases wherein the appellant has not been sentenced for 12 months single
sentence, the decision of cancellation of visa are set aside by Administrative Appeals of
Tribunal. Thus, the decision taken by Senator Hon. Linda Reynolds CSC would lose its
legality because of lack of consideration of Direction no. 657.
In this regards, the case of Bochenski v Minister for Immigration and Border
Protection [2017] FCAFC 68 may also be taken into consideration. In this case,
because the appellant had caused severe offence and had been sentenced for the 15
years imprisonment, his visa was cancelled 8. The ground of acceptance of his visa
cancellation was because of his failure to pass character test and having association
with severe offences.
Thus, it can be stated that lack of application of Direction no. 65 by Senator Hon. Linda
Reynolds CSC would result in having significant adverse impact on the visa cancellation
decision.
3] Challenging cancellation of Hon. Peter Dutton MP
In context to legally challenging the decision of visa cancellation of Hon. Peter Dutton
MP, it can be mentioned that Ministers exercise the ‘personal’ powers entitled to him or
her in a very active manner, under Migration act 1958. However, it can be observed
that Hon. Peter Dutton MP is associated with Minister of Home Affairs. Whether is fact
that Hon. Peter Dutton MP is associated with Minister of Home Affairs can be
considered as a basis challenging the decision is a factor that requires to be
highlighted9.
In this context, Section 501 (3) of Migration Act 1958 may be taken into consideration.
Under this section of the act, it has been stated that a delegate or the Minister or
Minister of Home Affairs may cancel or refuse to grant a visa to an individual based on
‘character test’. In other words, if an individual fails to cater to the requirement of the
7 Ministerial Direction 65. Rules For Visa Refusal, Cancellation And Revocation Under S501 (2018)
nowakmigration.com.au <https://nowakmigration.com.au/direction-no-65-visa-refusal-and-cancellation-under-
s501/>.
8 Bochenski V Minister For Immigration And Border Protection [2016] FCA 989 (2016) jade.io
<https://jade.io/article/488754>
9 Review Processes Associated With Visa Cancellations Made On Criminal Grounds (2018) aph.gov.au.
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‘character test’ as mentioned under Migration Act 1958, Minister Home Affairs is
entailed to cancel visa of individual10. An individual may be considered to not met the
‘character test’ is the individual has certain criminal record, convicted of offence
committed, having association with groups in criminal conduct etc11.
Based on the above made discussion, if the case of Michael is taken into consideration,
it can be noticed that he had association with Triad. Based on this fact, if Hon. Peter
Dutton MP cancels his permanent residency visa it cannot be legally challenged on the
basis that he is associated with Minister of Home Affairs and does not have required
expertise to deal with the case12. His association with Triad would result in his failure to
pass the character test, thus, would form a strong edifice to cancellation of his visa that
cannot be legally challenged13.
Hence, cancellation of visa made by Minister personally is difficult to challenge.
Furthermore, challenging cancellation based on character grounds in Federal court is
more complex to challenge. No merit review of cancellation decisions taken by Ministers
personally is available. Merit review can be only availed when decisions has been taken
by delegates. The only way to challenge a cancellation made by Minister is by
highlighting errors associated with jurisdiction. Jurisdictional errors are observed in
cases wherein relevant matter has not been highlighted or focus has been given on
matter of the case that is irrelevant in nature. Thus, there is very limited way in which
cancellation decision undertaken by Ministers can be successfully challenged.
10 2 When Can A Visa Be Refused Or Cancelled Under Section 501? (2018) Humanrights.gov.au
<https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-
cancellation-under-sectio-1>.
11 Review Processes Associated With Visa Cancellations Made On Criminal Grounds (2018) humanrights.gov.au
<https://webcache.googleusercontent.com/search?q=cache:qpJFNMq1q3sJ:https://www.humanrights.gov.au/
sites/default/files/18.04.27%2520AHRC%2520Submission_Visa
%2520cancellations.pdf+&cd=6&hl=en&ct=clnk&gl=in>
12 Review Processes Associated With Visa Cancellations Made On Criminal Grounds | Australian Human Rights
Commission (2018) Humanrights.gov.au <https://www.humanrights.gov.au/submissions/review-processes-
associated-visa-cancellations-made-criminal-grounds>.
13 Review Processes Associated With Visa Cancellations Made On Criminal Grounds (2018) humanrights.gov.au
<https://www.humanrights.gov.au/submissions/review-processes-associated-visa-cancellations-made-criminal-
grounds>.
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Conclusion
Based on the above made discussion, it can be stated that Migration Act 1958 is an
essential legislation regulating migration of the nation. This legislation provides
Ministers to delegate their authority to Assistant Minister. Apart from that, in case of
individuals having association with criminal groups, result in their failure to pass
character test. This forms a strong edifice for cancelled to applied visas.
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