Cancellation of visa under section 501(2) of the Migration Act
As per the fact of the case John is a citizen of New Zealand and has been granted a Class TY Special Category (Temporary) sub class 444 visa. He is staying in Australia for the last 10 years. Though he is quite successful in his professional career he has some bad involvement with various criminal activities like drunken behavior, theft of a motor vehicle and driving without a license which make pleaded guilty to all his charges and finned with $2,000 for good behavior Bond. Later he again found to drive without license, driving carelessly, assault and therefore he was imprisoned for 2 months and wholly suspended for 12 months and has to pay $2,500 as compensation. In 2017 he was found with burglary with a lethal weapon Samurai sword and therefore again he was imprisoned for 3 months and Court has ordered for $3,000 as compensation.
Now his parents are worried about their son and they are residing in Australia on Class TY Special Category (Temporary) sub class 444 visas. However recently it has been found that his girlfriend Hannah who is staying in Australia with Class TU Student Temporary sub class 500 visa is 7 months pregnant. After he get to know that he will be a father he has been treated under a doctor and a psychiatrist and they will continued the treatment and stated that good influence from his family will help John to be rehabilitated. Recently he received a letter from the migration department which contain a notice of intention to consider cancellation of his visa on character Grounds under section 501(2) of the migration Act 1958.
Under section 501 of the migration Act 1958 the visa may be refused or cancelled if it is not passed the character test according to the minister of immigration and citizenship or the Minister delegate then they has right to cancel a Visa on the character ground. The Minister can cancel a Visa on the character ground where the person reasonably suspected that they do not pass the character test and if they failed to satisfy the Minister to pass the character test then they have the power for cancelling of visa which should duty of the Minister or by the minister’s delegate.
The section 501(3) provides another power to cancel the visa on the character ground where it should be used by the Minister personally. If the Minister cancels the visa under the section 503 of the migration Act 1958 the person should be suspected that he has failed to pass the character test and it will be satisfied the Minister that the cancellation is occur in the national interest.
The character test has been legislated under section 501(6) where the suspected person may fail the character test if they:
- related with a substantial criminal record ever been convicted or found escaped from immigration detention
- must have committed with criminal offences which is in immigration detention
- should have been a member of or had any past Association with any criminal organization which involved in criminal conduct
- The person should be found or suspected for the involvement with people smuggling, people trafficking, genocide, war crimes or any crimes against humanity.
- The person have found related with any sexually offences where a child is involved
- the person should be subjected of any adverse assessment by ASIO
- The person should be noticed with the issues which should be reason for being a risk to the Australian community.
The visa can be refused or cancelled under section 501 of the migration Act 1958. It defines and describes through a two stages of the decision making process under this act which is also known as threshold test for a refusal or cancellation. If it has been found that under section 501 (1) (2) (3) has been satisfied the minister of the delegate for the refusal or cancellation therefore the second stage of decision making process has been processed under the section 501 of the migration act. But it is important that the minister of the delegate should have the right to take decision whether the visa should we exercise to refuse or cancel. Under section 499 of the migration act the Minister give direct Direction for the decision making process under section 501 where ministerial decision should be commenced by the offices of the department of immigration and citizenship where they will work on the visa cancellation and refusal decision under the section of 501(1) and (2) of the migration act.
The character test has detained under the section 501 of the migration act mainly depend on four categories which includes substantial criminal record, Association with criminal conduct, lot of good character on account of past and present criminal or general conduct and significant risk of future contact grounds.
Most of the time the character test has been failed due to having a substantial criminal record of the person under the section 501(7) of the migration act. The substantial criminal record has been defined the visa holder who has a substantial criminal past record if he is involved in the punishment of sentenced to death, ever sentenced to the punishment of life imprisonment or ever have sentence to a term of imprisonment for 12 months or more. If the person has involved with an offence due to the mental illness or if the court is not found that the person is not fit and the court has made a finding of guilty according to the evidence which has been detained in a facility or institution.
The association with criminal conduct has defined where the person has failed to pass the character test for any involvement with other persons or any group which can involved with criminal contact and suspected by the Minister.
In the third category lot of good character on account of past or present criminal or general conduct the general conduct has defined where the persons past or present involvement where they not pass the character test and DIAC has considered where the person has been found with the involvement in such exercise which define content or disregard against the law or human rights and has found mislead immigration officials therefore DSE can consider the recent good conduct. In the criminal conduct where the person has failed in the character test where the delegate of the Minister should take the involvement of nature severity frequency and time elapsed from the period when the offences has been committed and that person also recorded for the offence is which has been committed and it also includes any mitigating circumstances.
In the fourth category the significant risk of future conduct grounds the person may fail the character test if a significant risk has been found in Australia where that person has been involved in any criminal conduct which includes harass, molest intermediate or stalk another person or found to be a risk to the Australian community or incite discord or represent a danger to the part of the community or the Australian community.
However when the person has not passed the character days that does not cancel the visa automatically by DIAC. DIAC must look for a number of factors before it make the decision whether or not to cancel the visa. The ministerial direction number 21 has been determined such consideration which has been divided in three parts.
- The primary consideration for it must make the decision before cancel officer that includes the protection of the Australian community, the expectation of the Australian community for the best interest if any child who has been aged under18 have affected.
- The Other consideration which includes the facts for that person is married or any de facto relationship with another Australian citizen or has permanent residency or any previous hardship which has been caused or any immediate family members. It also includes the extent of disruption to the person’s family business or any other related matters in Australia the composition of that person’s family which may in Australia or any other country. If the person has using any legal matter or any liability or that person has been previously advised by DIAC which has been brought him or her in the section of 501 cancellation revision or there is any evidence of rehabilitation and good conducts.
- The third one is other international obligations which includes the obligations for that person who is facing any risk of violation with the right to life and the right to freedom in the country of his origin or any issues of protection under the convention relating to the Status of Refugees 1951 where they have their visa cancelled and should be returned to the country of origin.
However the DIAC has been provided such right where before the cancel of the visa of the person on the basis of character ground he has right to comply with the evidence under the code of procedure where they invite that person to provide such evidence or any further information before the decision has been made. In the decision making process the Minister is the decision maker. Therefore he must require contacting such procedure with the rules of natural justice or with the code of procedure.
If DIAC has been take decision to cancel that person visa then the person will become an unlawful processed under the immigration detention if the visa has been cancelled under the five hundred and one of the migration act then that person has been permanently banned from applying for another visa file in Australia. It also cancelled other visas which have been that person is holding and it will be permanent exclusion from Australia. The visa holder may be banned from Australia but it can be reviewed under the Administrative Appeals Tribunal. The minister has no right to personally review the decision by the Administrative Appeals Tribunal. The 501 cancellation of visa has also reviewed by the Federal Court or the High Court of Australia. If it has been found that the minister has been made an error in the law and providing on the decision of the cancellation of the visa then it can be reviewed.
If the visa was cancelled on the character Grounds therefore John can apply for the review of the decision on the cancellation of the visa under section 501(2) of the migration act. The cancellation of visa decision making process can be review in three ways.
- Access to the merits review where the Administrative Appeals Tribunal can review the decisions on the basis of merit and it can be able to challenge the legality of the decisions through the court proceeding. If that visa holder has been apply for the merit reviews by Administrative Appeals Tribunal on the basis of the decision which has been made by the Minister own himself or by a delegate of the Minister. The decision has been refused to grant or cancel the visa process under the merit reviews by Administrative Appeals Tribunal if that decision has been made by a delicate of the Minister.
Decision making process of the visa cancel also refused according to the Judicial review where the decision has been made by DIAC officer or by the Minister personally. The Federal Court or High Court of Australia if we found that the visa cancellation Decision Process has been affected by the jurisdictional error then that decision making can be reconsidered and it can be cancelled the decision.
- The minister has personal powers to refuse or cancel visas under the section 501, 501A and 501B of the migration act on the basis of minister’s own discretionary powers where he have rights to refuse or cancel the visa process on the basis of character ground. The visa holder Can only has right to challenge the legality of such decisions through the Judicial review if minister has involved in the cancellation of that visa.
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