Migration Act Human Rights Commission

Questions: (1) Can Billy be deported, considering he has been living in Australia now for more than15 years? Write a letter of advice to Billy explaining the legislation and requirementsin sections 201 and 501 that relate to his circumstances and what his options wouldbe if his sentence was to cause the Minister to consider cancelling his visa anddeporting him.(2) Discuss, with reference to the relevant legislation, on what grounds the Minister may make a personal decision to cancel Billys visa under sections 501, 501A and 501Bof the Migration Act 1958 or set aside an original decision made by the delegate orthe Tribunal. If Billys visa was cancelled by the Minister personally, are there anyavenues of review that he can pursue? Answers: 1. Hello Billy, In this letter, we are addressing the issue related to section 501 and 201 of the Migration Act 1958. These sections are related to deport of non-citizens from Australia in case of any offence committed by non-citizen in Australia. Before giving the advice on the options available to you in case minister exercise his power and cancel your visa under section 201 and 501, it is necessary that we understand the section and facts of the case. Billy you are holding the citizenship of New Zealand, and arrived in Australia on a special visa that is subclass 444 when he was of aged 21. You are living in Australia for more than 15 years, and now aged 36. While returning from the pub you hit four teenagers who were returning from the party, which result in death of three teenagers, and fourth one was badly injured. You are placed in the police custody on the basis of the charge that is dangerous driving causing death. At the same time, your neighbor Sally Fields file complaint that you are molesting her daughter Emily, who is just 13 years old. At trial, judge found that you are molesting the Emily from 2010, when she was just 7 years old. You argued that you love Emily and wants to marry her, but judge was not convinced with this argument. Judge imposed 5 year imprisonment. Matters related to Deportation of non-citizens from Australia are fall under two sections that is Section 201 and 501 of the Migration Act 1958[1]. Section 201 of Migration Act 1958 states[2], that any person who is a non-citizen in Australia, and has been convicted for any offence committed in Australia can deport from Australia if such person was living in Australia for less than 10 years. it must also be noted that it is necessary for the application of this section that At the time of commitment of the crime, the convicted person must be non-citizen, who had been residing in Australia as a permanent resident for the period of less than 10 years and for that time of durations which if added together would be less than 10 years. In this case, it is clearly stated that you are living in Australia for more than 10 years. Therefore, it is clear that section 201 does not apply on you Billy. You are not the citizen of Australia, and you holds the citizenship of New Zealand. You lives in Australia as an exempt non-citizen and holds the visa of special category. According to Clause (b) of section 201 states that any person who holds the citizenship of New-Zealand, and who had been residing in Australia as an exempt non-citizen or who holds the visa of special category for the period of less than 10 years. For the purpose of this section the offence is described under Clause (c) of section 201 which states that offence in which person was sentenced to death or imprisonment for life or for period which is not less than 1 year and in this case Billy was sentenced to imprisonment for five years. Note: Section 200 of Migration Act 1958 applied to that person who falls under section 201 of Migration Act 1958. From the above discussion it is clear that section 201 apply on person who lives in Australia for less than 10 years. There this section is not applied on you because you are living in Australia for more than 15 years. Now, we look in Section 501 of the Migration Act 1958 which states[3] that Minister or Delegates cancel or refuse the Visa of the person on the grounds of character of person. Sub clause (1) and (2) of section 501 states[4] that minister may refuse to grant the visa or cancel the visa of the person who does not satisfy the minister that he passes the character test which is specified in subsection (6) of the Section 501 of Migration Act 1958, and the minister is satisfied that the refusal of visa or cancellation of visa is in the interest of Australia. In the present case, you commits the offence which was mention in the sub clause (6) (e) of section 501 that is commitment of sexual assault with child. In this you sexually harass the Emily from 2010 when she was just 7 years old. In this section person was deport from Australia, and minister can cancel the visa if he satisfied that person fail the character test because of the following reasons: Any person who has substantial criminal record that is mention under subsection 7, or any person who was convicted of an offence that was committed when such person was in immigration detention, or during the period when person is escaped from immigration detention, or after person is escaped from immigration detention but before he was taken back into immigration detention. For the purpose of this section substantial criminal record means[5]: Any person who sentenced to death. Any person who has been sentenced to imprisonment of life. Any person who sentenced to imprisonment for year or more. In this case, you holds substantial criminal record, because you were sentenced to imprisonment for the term 5 years. Therefore, minister can cancel the visa and deport you from Australia. When any court in Australia or in foreign country convicted any person for offences related to sexual assault with child, or found any person guilty for sexual assault with child and charge was proved against the person for sexual assault with child. This section is applied even if the person was discharged. From the abovementioned discussion it is clear that any person who is involving in child assault can deport from Australia. Minister can take decision to cancel and refusal of visa of the person who was guilty under section 501(6) of the Migration Act 1958, no matter how long person live in Australia[6]. Advice: We can file appeal against the order of the DIBP in AAT, because any order made by DIBP can be reviewed only by AAT. No, other option is available to, except file appeal against the decision of DIBP to AAT. According to section 500 of the Migration Act 1958 any person whose visa is refused or cancelled by minister under section 501 of the Migration Act 1958 can make application to the Administrative Appeals Tribunal for the review of the decision[7]. It is important to note that decision made by DIBP can be reviewed by AAT; any decision made by minister personally cannot be reviewed by making application to AAT. Minister also has power to set aside any decision made by the DIBP or Administrative Appeals Tribunal, and cancel the visa of the person. 2. Before stating the grounds on the basis of which minister can make a personal decision to cancel the Billy visa under sections 501, 501A and 501B of the Migration Act 1958 or set aside an original decision made by the delegate or the Tribunal, it is necessary that we understand the meaning of section 501A and 501B. Section 501A of the Migration Act 1958 states[8]: This section applies when the delegate of the Minister or the Administrative Appeals Tribunal makes the decision which is known as original decision, of not exercising their power which is provided under section 501(1) and 501(2) to refuse or cancel the visa respectively. In case of non applicability of natural justice the minister may set aside the original decision and refuse to grant the visa or cancel the visa that has been granted to the person if minister doubts that person does not clarify character test and minister believes that such refusal or cancellation is in national interest. According to subsection (5) and (6) of this section power stated under subsection (2) and (3) of this section can only be exercised by the minister personally, and minister is not under any obligation to exercise the power defined under subsection (2) and (3) against the original decision[9]. Section 501B of the Migration Act 1958 states[10]: This section applies when the delegate of the Minister or makes the decision which is known as original decision under section 501(1) and (2), to refuse to grant the visa or cancel the granted visa of any person. Minister can refuse or cancel the visa if he suspects or found that person does not pass the character test defined under section 501(6) of the Migration Act 1958, or the person is not able to satisfy the minister that he passes the character test, or minister believes that refusal or cancellation is in the national interest. Clause (3) of section 501B of the Migration Act 1958 states that power under subsection (2) of 501B of the Migration Act 1958 can be exercised by minister personally. Clause (3) of section 501B of the Migration Act 1958 states that minister has power to set aside the original decision made under subsection (2) of 501B of the Migration Act 1958, even in case when such original decision is the subject of application under review by AAT. Subsection (4) of Section 501 of the migration act states that power mention under subsection 501(3) can be exercised by minister personally. Grounds on which minister can cancel Billys visa, these grounds are used by minister personally. These grounds are generally defined in four categories: Substantial criminal record which is specified under subsection (7) of 501 of the Migration Act 1958: Any person who sentenced to death. Any person who has been sentenced to imprisonment of life. Any person who sentenced to imprisonment for year or more. In this Billy was sentenced to imprisonment for 5years which proves that he has substantial criminal record. Any person who is associated with criminal conduct: Any person who failed in the character test and associated with any other person or group, on which minister has reasonably that such person or group is involved in any criminal conduct. Billy was failed in the character test, because he has the substantial criminal record and he was involved in the offence of dangerous driving and child sexual harassment. Any person who is not of good character on the basis of his past and present conduct or general conduct: Billy was already convicted for the offence of dangerous driving and sexual assault involving a child, after looking in the past conduct it is possible that minister can cancel the visa of Billy. Any person whose future conduct is risky[11]: Any person who is involved under criminal conduct. Harass, molest, intimidate or stalk any other person Any person who represent the danger to society and community of Australia. In this minister can assume that Billy is dangerous for society after looking the crime history of Billy. If DIBP or minister found that person fails the character test or engaged in any type of ground stated above, then visa of such person is automatically cancelled. Review of decision is depending on whether the decision is made by the DIBP or Minister. Any decision made by DIBP can be review by making application to the AAT, but decision made by the minister personally cannot be reviewed by AAT or any other authority. When decision is made by DIBP, AAT has power to review the decision on the grounds whether decision is correct or preferable or not. AAT has power to affirm or revoke the original decision. In cases when AAT make decision not to cancel the persons visa and then minister has power to cancel the persons visa by set aside the decision made by the AAT. Minister also has power to set aside the original decision of DIBP and cancel the visa of the person. Minister also has power to substitute the original decision with his own decision. Minister can do this even the person made the application to review the decision made by DIBP to AAT. So it is clear from the above that any decision made by the minister cannot be review by AAT, but any decision made by the DIBP can be reviewed by making application to AAT[12]. Yes, Billy can file appeal against the decision made by minister under judicial review. It must be noted, any decision made by DIBP or minister under section 501 of the Migration Act 1958 to refuse or cancel the visa of the person can be reviewed under judicial review either by Federal Court or the High Court of Australia[13]. Bibliography Legislation Migration Act 1958 Migration Act1958, s 201 Migration Act 1958 s501 Migration Act 1958 s501A. Migration Act 1958 s501B. Websites Parliament of Australia. Chapter 9 - Removal and deportation. Accessed on 16th October 2016. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed%20inquiries/2004-07/migration/report/c09. Australian Human Rights Commission. Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act. Accessed on 16th October 2016. https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1. Australian Government: DIBP. Fact Sheet - The Character Requirement. Accessed on 16th October 2016. https://www.border.gov.au/about/corporate/information/fact-sheets/79character. Migration Act 1958 s 500 Federal Register of Legiislation. Migration Act 1958. Accessed on 16th October 2016. https://www.legislation.gov.au/Details/C2015C00344. Human Rights Commission. 2009. Background Paper: Immigration detention and visa cancellation under section 501 of the Migration Act. Accessed on 16th October 2016. https://www.refworld.org/pdfid/4a2e35462.pdf. Australian Human Rights Commission. Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act. Accessed on 16th October 2016. https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-4. Australian Human Rights Commission. Background paper: Immigration detention and visa cancellation under section 501 of the Migration Act. Accessed on 16th October 2016. https://www.refworld.org/pdfid/4ec3a6052.pdf.