LML6007 : Graduate Diploma In Migration Law

Question:

Is the delegate right to conclude that they were satisfied that this case had the grounds for cancellation of s.116(1)(e)?

Anna stated that she was not returning to her studies.

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Does this information relate to the question of cancellation or renewal?

Your answer should be explained

For the purposes of s. 116(1)(e), how are unproven criminal convictions against visa holders addressed?

Answer:

Factual Background

Anna Do’s subclass 500 student visa was cancelled due to the Minister for Immigration and Border Protection finding that she poses a threat to the health, safety and well-being of the Australian community.

Her visa was canceled in accordance with Section 116 (1)(e) of the Migration Act 1958. This would make her an illegal citizen and would force her to be held in immigration custody until the court decides if her visa should or not be reinstated.

The core of the findings by the delegate were based upon the criminal charges she was facing in relation to an incident that led to the death of another person.

She wasn’t even registered as a healthcare practitioner when she was charged with these crimes.

Anna Do and her spouse are originally from China and have been living in Australia ever since.

Anna was able to obtain a student visa subclass TU 573 to study nursing in Australia.

So she was able to legally live in Australia for the duration of her visa.

The authorities granted her a second student visa, subclass 500, to allow her to continue to reside in Australia.

She had thus obtained a valid visa to stay within the Australian commonwealth’s jurisdiction until June 2018.

Anna worked in a beauty shop and her employer was a surgeon with extensive knowledge of surgery and medicine.

During one procedure, she administered an extremely lethal dose to her employer. This caused his death.

After being charged under the Crimes Act. 1900, she was also charged with using substances that caused death under Section 39 and hindering investigations that were related to acts by another person under Section 315(1) (a) of Crimes Act. 1900.

Because she had not been convicted of any crime, she was released from custody upon remand.

Further, she stated that her actions were at the direction of her victim’s employer (an experienced medical professional).

Anna worked in a beauty shop and was not employed at a hospital. Therefore, she didn’t have to register as a health professional.

Section 116 and Section 501 are the two sections that can cancel visas.

Section 501 was added to the act by amendments in December 2014. It describes specific circumstances where a person can have their visa cancelled.

Section 116 of this act, however was in force prior to Section 501’s enactment and gives the Minister of Immigration and Border Protection greater powers.

These powers are so badly drafted that it is easy to interpret them as discretionary and arbitrarily.

Section 116 (1) of this act allows the Minister for Immigration and Border Protection to cancel visas if certain circumstances exist in the current case.

Section 116(1) (e) says that the Minister of Immigration and Border Protection may cancel a visa if it is determined that the visa holder’s presence would pose a danger to safety and health, or the good order and security of the Australian Community.

These parameters are not clear and there are no judicial pronouncements that can be used to interpret each case.

In many cases, the Minister of Immigration and Border Protection may make a majorly discretionary decision that would in effect result in the removal of an individual from Australia’s jurisdiction.

For such removal, the Minister for Immigration and Border Protection serves the person with a Notice Of Intention To Cancel (NOIC) which the person must reply to within five working days.

You can also take the person into immigration detention. This will allow you to get the case resolved faster. They must first show cause and then refute the cancellation. It determines whether or not the visa is valid.

If the decision to cancel is not upheld, the person will be placed in immigration detention and could be removed from Australia.

You have the right to appeal the decision to the Migration and Refugee Division at the Administrative Appeals Tribunal (AAT). This is done by paying a fee and within 7 days.

This would require the person to appeal to the tribunal to show that they are satisfied that the applicant is not a threat to Australia’s health, safety, or order. The reasons for confirming the reasons not to cancel the visa must be weighed against the reasons for cancellation.

Not surprisingly, a concrete conviction in criminal court is not required to prove that an individual poses a threat to the Minister for Immigration and Border Protection.

Anna could have her visa revoked by the Minister of Immigration and Border Protection as a result of the criminal charges she was facing. It would also be validly canceled.

She was also charged with serious criminal offenses. Her claim that she was acting as an agent for her employer cannot be supported adequately, as her employer is no longer present to cross-examine.

Anna failed to respond to the NOIC so she lost her right of showing cause.

Even though the allegations against Anna are broadly discretionary and arbitrarily based, they are permissible by law and permit the Minister of Immigration and Border Protection (the Minister) to cancel her Visa.

Anna was unable or able to contest such a decision.

According to the background facts, Anna’s subclass 500 student visa was cancelled by the Minister of Immigration and Border Protection. This was due to her being charged with a crime that would have grave consequences for her health, safety and order in Australia.

Section 116 (1)(e) states that the Minister For Immigration and Border Protection has the power to cancel a visa if he believes that the visa poses a threat to the safety, security or good order of the Australian community.

This can be refuted, however, as the parameters required for such a determination are vague and ambiguous.

The Minister for Immigration and Border Protection has broad discretionary power to make this determination. However, Anna was not actually convicted of any crime.

This legal challenge would need to be established, however, because the Act does not limit the Minister for Immigration and Border Protection’s powers as set forth in Section 116.

Anna, however, stated before the tribunal that her second student visa (subclass 500), was not granted to her because she is no longer going to her course of interpreting or translating.

This could be seen as an intent to revoke her student visa because the visa was granted for the applicant’s educational endeavor.

Additionally, Section116(1)(a) grants the Minister for Immigration and Border Protection the power of cancellation in the event that the visa in question was grated partially or wholly owing to a circumstance and that circumstance was no more in existence.

Anna’s subclass 500 student visa was granted on the basis that she would be taking a course in translation and interpretation in Australia.

In the current set of circumstances, she would not be continuing the translation and interpretation course. She also stated that she is not returning to the same.

In such a case, the fact or circumstance which led to her approval of her visa would no longer exist and she is liable for its cancellation under Section 116(1) (a) of The Migration Act 1958.

It would not be possible to challenge the decision of the Minister of Immigration and Border Protection to cancel her visa under Section 116(1) (a) because it was clearly and adequately provided for in the act. The act does not allow for discretionary or free interpretation.

Therefore, even though she has not been able to return to the course, her intention does contribute to her visa being cancelled.

It was mentioned that 1958 visas can be cancelled under Section 116 or Section 501 of The Migration Act.

Section 501 states that a visa can only be cancelled by the person applying for or holding it.

It has been determined that a person with a substantial criminal history would be someone who has been sentenced to at most 12 months imprisonment.

Accordingly, Section 501 of this act provides sufficient information about the circumstances leading to cancellation.

Section 116 (1) and 116 (2) (e) aren’t clearly defined, so they are largely discretionary.

Section 116 (1) (e), the criminal record of the visa holder doesn’t have to be substantial (as is provided for the purposes Section 501). A visa holder also doesn’t have to have been convicted of any crime. Anyone who is out on bail or remand can have their visas revoked by virtue of this section.

Section 116 can be used to cancel a visa if the person is facing criminal charges or has not been proven guilty.

Although Anna is not charged with a crime, it would be enough to cause her student visa (subclass 500), to be cancelled by the Minister for Immigration and Border Protection (or his delegate).

Anna cannot dispute this as Anna doesn’t have any protections under the act.

Statutes

1958 Migration Act.

Articles

Mary Bosworth, Katja Franko and Aas, eds.

The borders and consequences of punishment: Citizenship, migration, and social exclusion.

Oxford University Press 2013.

Aleinikoff (T. Alexander) and Douglas Klusmeyer (eds.

From migrants and citizens: Membership in a changing World.

Brookings Institution Press.

“The amenity theory, 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 immigration and diversity in Australia: introduction.”

Journal of Intercultural Studies 34.2 (2013): 120-121.

Castles Stephen, Hein Del Haas and Mark J. Miller.

The age and rise of migration: Global population movements in the 21st century.

Palgrave Macmillan. 2013.

Freilich and Joshua D.

Migration, culture conflict and criminality

Constructing and envisioning labour migration: Viewpoints from five continents.

“The Department of Immigration and Border Protection: Section 501 of 1958’s Migration Act is administered.”

Canberra, Australia: Commonwealth Ombudsman (2016).

Pickering Sharon, and Julie Ham, editors.

Routledge Handbook on International Migration and Crime.

“International Migration and Gendered Axes of Stratifi cation: Introduction.”

Gender and Migration: New Perspectives

“Time and temporary immigration: The case of working holidaymakers and temporary graduates in Australia.”

Journal of Ethnic and Migration Studies, 40.12 (2014): 1915-1933.

Peter H. Schuck. Law and the Study of Migration.

Migration Theory.

“Negotiating belonging within Australia through storytelling, encounter and interaction.”

Identities 21.5 (2014), 551-569.

“Where are the overseas students staying on?”

Migration to Australia from overseas and attachment to rural areas in Australia:

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