Questions:

You receive the following instructions from your principle at Migration Associates and Co Pty Ltd.

On 14/9/2018 the Senator the Honourable Linda Reynolds CSC decided under section 501 subsection 3 of the Migration Act 1958 CTH to cancel a permanent residency visa held by John Nugyen.

In her decision the Honourable Linda Reynolds CSC concluded that John posed a risk of harm to the Australian community given John’s ties to the Triads an Asian Criminal Organisation in Sydney.

Given that the Honourable David Coleman MP Minister for Immigration, Citizenship and Multicultural Affairs has been busy with other political matters, the Honourable Linda Reynolds CSC had been appointed the assistant minister for home affairs from 28/8/2018.

The assistant minister is a member of the Federal Executive Council. In light of the preceding, the client John seeks your immigration assistance in answering the following two questions.

• John understands that a decision under section 501, subsection 3 of the migration act 1958 CTH must be made by the minister for immigration, citizenship and multicultural affairs personally. Given that the decision to cancel John’s visa was made by the assistant minister for home affairs, Johns seeks advice as to whether he can challenge the decision on this basis.
• In making the decision to cancel John’s visa, the assistant minister did not strictly consider and apply direction no. 65. John seeks your advice as to whether this fact has an adverse effect on the legality of the decision being made.

Answers:

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 test[1].

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 holder has not passed the character test. [2]As 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 Citizenship[3]. 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 committed[4].

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 visa[5].

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 error[6].

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 test[7].

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 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 Australia[8].

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 removed[9].

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

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.

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>

[1] Federal Register of Legislation, Migration Act 1958(n.d.)< https://www.legislation.gov.au/Details/F2006B11706>

[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.

[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>

[7]Amy Nethery ,’Partialism, Executive Control, and the Deportation of Permanent Residents from Australia ‘(2012) 18 Population, space and place 729,740.

[8]Khanh 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.

[9]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>