Issue of visa in Australia Answers for Students-Myassignmenthelp

Question: Prepare a letter of opinion for Emily as to your proposed response to the Notice of Intention to Consider Refusal under s.501(1) of the Migration Act. Answer: To Emily The rules and procedures related to the issue of visa in Australia are governed by the Migration Act 1958 and Migration Regulation 1994[1]. When a person applies for an Australian visa he or she has to go through a character test. In this test the minster or his delegates decide that the person is fit to be given a visa or not based on his or her character. The minister has discretionary powers determine whether or not to provide a visa to a person based of character. Section 501 of the Migration Act 1958 deals with provisions related to character test[2]. According to Subsection 1 of the section the minister can refuse to provide a person an Australia visa if he is not adequately satisfied by his or her character requirements. Subsection 2 further provides that the minister has the authority to cancel the visa even if he has suspicion that a person would not be able to overcome the character test[3]. The minster may not only oppose the grant of visa to a person he can also cancel a visa which has already been granted. The minister can also rely of the fact that in order to attain best interest for the nation the visa has to be refused. The section further states that natural justice is not applicable in relation to the decisions of the minister[4]. There are circumstances in which a minister has to cancel a visa application of a person as provided in Subsection 3. The minister has the obligation of canceling a visa application if the applicant has a substantial criminal record or has been indulged in a sexual offence related to a child. When a person is already serving an imprisonment sentence for a crime against the commonwealth in a full time basis his or her visa application is also liable to be canceled. The minister can only personally exercise the powers under this section. Subsection 6 provides the provisions related to the required character test. A person fails to pass the character test if he has a substantial criminal record as provided in subsection 7. The person while in immigration detention has committed an offence along with other specified offences according to the Act. The minister will also take into account the present and past of both general and criminal conduct of the person and if found that the person d oes not have a good character than the visa is liable to be rejected. The minister has to determine the fact that whether or not such person would be a threat to the Australian community by engaging in criminal and immoral activities such as harassment, molestation, stalking, vilifying and inciting discord if such person is allowed to say in Australia. The person would also fail the character test if it is found that he or she has been involved in genocide, inhuman crime, war crime, crime like slavery and torture and crimes of significant international concerns[5]. Subsection 7 further provides that a person fails the character test with respect to a substantial criminal record if the person is facing a death sentence, life imprisonment sentence, sentences of more than twelve months of imprisonment and two or more sentences combined to become more than twelve months. The person also is deemed to have a substantial criminal record if he or she has been released of a sentence because of insanity or unsound mind[6]. The ministers have to take into out directors provided by the Minister direction No. 55 when they decide whether to refuse or cancel a visa. The delegates and the minister are compelled to consider a few factors provided by the directions[7]. The factors are divided into primary factors and secondary factors. The primary conditions which the ministers need to consider according to the directors are related to the protection of Australian community from criminal conducts, benefits of minors in Australia and international obligations owed by the person. The decision maker also has to consider the nature, duration and strength of the ties of the person with Australia. The minister also has to take into account a few secondary obligations in order to refuse or cancel a visa. The obligations include the effect of visa cancelation on immediate family of the person residing in Australia, business interest of Australia and general person belonging to the Australian community[8]. An application to the Administrative Appeals Tribunal (AAT) can be made by the applicant whose visa has been refused based on the conditions of Section 501 of the MA[9]. The status of application will depend on whether the refusal has been made by the delegates or the ministers himself[10]. The decision which has been made by the delegate can be review by the AAT, however a decision which has directly been made by the mister is not eligible for a review. The AAT reviews the decision made by the delegates to determine its merit. The ministers also have the power to overrule the decision of the DIAC in certain circumstances according to Administrative Appeals Tribunal Act 1975(Cth), s 43(1)[11]. The misters can also overrule the decision even when the appeal of the person is lying with the AAT. All the decision to cancel or refuse a visa by the delegates or the minster personally under section 501 of the MA are subjected to a judicial by the high court. The duty of the courts in this case is only to decide whether or not the decision has been made lawfully instead of the correctness of the decision. In case the court discovers that the refusal of visa has been subjected to jurisdictional error the court will prevent the original decision and transfer it back to the authorities for reconsideration. A bridging visa is a kind of visa which is issued by the authority when the applicant in in Australian on a substantial visa and has applied for another substantial visa and waiting for a decision. A person whose visa application has been rejected based on character grounds is eligible to appeal for a bridging visa if an appeal related to the decision is filed by such person. If a bridging visa class A or B is issued to a person he can stay in Australia for the period prescribed by the bridging visa. A person can also travel in and out of Australia if he or she is eligible for Bridging B visa. Response to the letter of intention to cancel the visa has to be done within the prescribed time period. The time period for such response has to be calculated. The person whose visa is intended to be canceled must write to the minister or delegates reasons against the visa cancelation. The person has to provide the office with a written statement to why the visa application should not be refused[12]. The written application may include both primary and secondary conditions as prescribed by the ministers directions. In case the visa application is is rejected by the DIAC the appeal against the decision has to be filed within nine days from the date of notice. A partners visa has been applied by Emily in this case. She is in Australia currently on a tourist visa. In order to be eligible for a partner visa Emily has to pass the character test. The mister has the discretion to decide whether or not Emily is eligible to pass the character test. The power has been provided to the minister based on s 501 of the MA as discussed above. The minister has the authority to reject the visa of a person based any substantial criminal record in the past of present character. The visa application of Emily is also entitled to be canceled if the minister has suspicion on Emily that she would fail the character test. The minister would determine the fact that would the national interest be put to a risk in case the visa is issued to Emily. The minster has no obligation to consider natural justice with respect to his decision. Based on the above discussion the mister has the right to cancel the visa application if Emily has a substantial criminal record. Acco rding to subsection 501(6) discussed above a person who has undergone more than twelve months of imprisonment is deemed to have a substantial criminal record. In this case Emily has served a sentence accounting to thirteen months in her home country for shop lifting. Therefore the minister is entitled to refuse her visa application based on her criminal record. However the DIAC has only issued the notice in relation to their intention of canceling the visa and are yet to issue a final decision. As discussed above Emily has chance to make a written submission to DIAC on why her visa should not be canceled. The minister has to consider the provisions of the ministers directions No 55 discussed above to decide the application[13]. The minister would primarily judge the submission of Emily based on the fact that whether she would cause any threat to the Australian community or not. one the minister is satisfied with the fact that Emily does not pose any risk to the Australia community which he should given the past record of Emily he has to take into account the secondary conditions of the Ministers directions. According to the secondary condition the mister has to consider if the visa is refused would any Australian citizen related to the applicant would be effected or not. in this case if the visa is not granted it would definitely have an ad verse impact on the son and husband of Emily who are Australian citizens[14]. On the other hand the minster has to consider the economy impact which the refusal would have on the Australian economy. Emily is a joint owner of an salmon farm with her husband. The farm provides employment to many Australian citizens and is predicted to grow over the years. In case the visa is not granted to Emily there would be an adverse effect to the Australian economy. Moreover Emily had not been in proper mental condition while she committed the offence and has come a long way since then. The minister has substantial evidence to believe that she would not be a threat to the Australian community. Emily has not committed any substantial crime like sexual offence involving a child or association with any unwanted organization[15]. However even if the visa application of Emily is rejected she can appeal against the rejection in the AAT in case the application has not been rejected by the minister by himself. The AAT would decide the application based on merit of the decision and in case it decides to uphold the appeal it would revert its decisions to the DIAC. However in case the AAT rejects the application off Emily or the application was decided by the minister himself, she can appeal against the decision in the federal court. The court will judge the appeal based on the point of law and not its merits. In case the court finds that the DIAC has made any legal error in relation to the decision it would revert the same to the DIAC. In case the minster decides the appeal or the AAT refuses the appeal there is very bleak chance that the federal court will overturn the decision as the court only decides the appeals in the point of law only and there is little chance that there would be a legal error in this case[16]. However the AAT can judge the appeal based on its merits and submissions made by Emily. Emily in this case is also eligible to apply for a bridging visa if she decides to appeal against the decision. The visa would allow Emily to stay in Australia 28 days after her appeal has been decided. The visa may also have the condition that Emily might travel in and out of Australia till her visa application or review is adjudged. Yours sincerely References Abbott, Malcolm, and Bruce Cohen. "The accountability of ministerial staff in Australia."Australian Journal of Political Science49.2 (2014): 316-333. Administrative Appeals Tribunal Act 1975(Cth), s 43(1) Beine, Michel, et al. "Measuring immigration policies: preliminary evidence from IMPALA."CESifo Economic Studies61.3-4 (2015): 527-559. Bulterman, M. K and Willem J. M. van Genugten, Netherlands Yearbook Of International Law 2013 Fan, Mary. "The Law of Immigration and Crime." (2013 Hollifield, James, Philip Martin, and Pia Orrenius.Controlling immigration: A global perspective. Stanford University Press, 2014. Jenkins, Henry Alfred, Examination Of Legislation In Accordance With The Human Rights (Parliamentary Scrutiny) Act 2011 M Bagaric, K Boyd, D Penny , S Tongue and J Vrachnas, Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2013) p 264 Migration Act 1958 Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011(Cth) Migration regulation 1994 Ministerial Direction No. 55, note3, Annex A, Section 2, para 3(2). Newman, Louise, Nicholas Proctor, and Michael Dudley. "Seeking asylum in Australia: immigration detention, human rights and mental health care."Australasian Psychiatry21.4 (2013): 315-320. Sanggaran, John-Paul, Bridget Haire, and Deborah Zion. "The health care consequences of Australian immigration policies."PLoS Med13.2 (2016): e1001960. Wright, Chris F. "How do states implement liberal immigration policies? Control signals and skilled immigration reform in Australia."Governance27.3 (2014): 397-421 Wright, Penny, Framework And Operation Of Subclass 457 Visas, Enterprise Migration Agreements And Regional Migration Agreement Migration regulation 1994 Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011(Cth) Migration Act 1958 Fan, Mary. "The Law of Immigration and Crime." (2013 Beine, Michel, et al. "Measuring immigration policies: preliminary evidence from IMPALA."CESifo Economic Studies61.3-4 (2015): 527-559. Jenkins, Henry Alfred, Examination Of Legislation In Accordance With The Human Rights (Parliamentary Scrutiny) Act 2011 Bulterman, M. K and Willem J. M. van Genugten, Netherlands Yearbook Of International Law 201 Ministerial Direction No. 55, note3, Annex A, Section 2, para 3(2). Hollifield, James, Philip Martin, and Pia Orrenius.Controlling immigration: A global perspective. Stanford University Press, 2014. Wright, Penny, Framework And Operation Of Subclass 457 Visas, Enterprise Migration Agreements And Regional Migration Agreements Administrative Appeals Tribunal Act 1975(Cth), s 43(1) M Bagaric, K Boyd, D Penny , S Tongue and J Vrachnas, Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2013) p 264 Abbott, Malcolm, and Bruce Cohen. "The accountability of ministerial staff in Australia."Australian Journal of Political Science49.2 (2014): 316-333. Sanggaran, John-Paul, Bridget Haire, and Deborah Zion. "The health care consequences of Australian immigration policies."PLoS Med13.2 (2016): e1001960. Newman, Louise, Nicholas Proctor, and Michael Dudley. "Seeking asylum in Australia: immigration detention, human rights and mental health care."Australasian Psychiatry21.4 (2013): 315-320. Wright, Chris F. "How do states implement liberal immigration policies? Control signals and skilled immigration reform in Australia."Governance27.3 (2014): 397-4