Lml6007 : Graduate Diploma In Assessment Answers

3). How are unproven criminal charges pending against a visa holder addressed for the purposes of s 116(1)(e) of the Act? (5 marks)

Answer:

Anna Do’s student visa (subclass 500) was canceled due to findings of the Minister for Immigration and Border Protection determining that she is a risk to the health, safety and good order of the Australian community. By virtue of this finding her visa was canceled under Section 116 (1) (e) of the Migration Act, 1958 which would effectively make her an unlawful non-citizen and she would be compelled to be detained in immigration detention till the court determines if she must be removed or if her visa should be reinstated. The crux of the delegate’s findings was based on the various criminal charges brought against her relating to an incident that resulted in a person’s death. She was also not registered to practice as a healthcare professional when she was accused of these crimes.

1). Anna Do and her husband are from china and were residing in Australia since 2013. This was when Anna procured a student visa (subclass TU 573) to undertake her nursing course within the confines of Australia. Thus she could legally reside in Australia till such visa expired. Subsequently she enrolled for a translation and interpretation course and continued to reside in Australia by virtue of a second student visa (subclass 500) was granted to her by the authorities. Thus, in effect, she had a valid visa to reside within the jurisdiction of the Australian commonwealth till June 2018. Anna was employed at a beauty clinic and her employer was a surgeon who had knowledge of the world of medicine and surgeries. During a particular procedure at the clinic, she administered a lethal dose of anesthetics on her employer causing his death. She was subsequently charged with manslaughter under the Crimes Act, 1900, use of substances that resulted in death under Section 39 of the Crimes Act, 1900 and hindering of investigations that related to the acts of another person under Section 315 (1) (a) of the Crimes Act, 1900. She was subsequently released from custody on remand due to not being convicted of any offence. She has further stated that her act was due to the instructions of her employer (the victim) who was an experienced professional in the medical field. Moreover, Anna was employed at a beauty clinic and not a hospital so she did not need to be registered as a healthcare professional for the same. Visas can be cancelled by virtue of Section 116 or Section 501 of the Migration Act, 1958. Section 501 of the act was introduced through the amendments made to the act in December 2014 and describes specific circumstances under which a person’s visa may be cancelled. Section 116 of the act however has been in force before the enactment of Section 501 and provides for a wider ambit of powers conferred upon the Minister for Immigration and Border Protection.

These powers are so inadequately worded that the powers conferred through them can be inferred as discretionary and arbitrary. Section 116 (1) of the act gives the Minister for Immigration and Border Protection the right to cancel visas if he is satisfied that certain circumstances provided for by the act do exist in the current scenario. Section 116 (1) (e) states that a visa could be cancelled by the Minister for Immigration and Border Protection if the minister is satisfied that the presence of the visa holder in Australia would be a risk to health and safety and good order of the Australian Community. These parameters are ambiguous and do not have adequate judicial pronouncements to provide for interpretation of each and every individual case. In a lot of cases the decision of the Minister for Immigration and Border Protection could be majorly discretionary and would still in effect lead to the removal of the individual from Australia’s territorial jurisdiction. The procedure for such removal is that the person is served with a Notice of Intention to Cancel (NOIC) and the person must respond to the same within 5 working days.

The person may also be taken into immigration detention, this would lead to a faster disposal of the case as they must show cause and refute the cancellation, which determines the viability of the cancelation of such a visa within four hours. In case the decision to cancel is upheld the individual immediately becomes an unlawful non-citizen and would be detained in immigration detention till that person is removed from Australia or may even be imprisoned further if there were criminal trials against the person which are determined in the affirmative. The person has a right to appeal this decision by applying to the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) within 7 working days through the payment of an application fee. Here the person would have to plead to the tribunal’s satisfaction regarding him/her not being a risk to health, safety an order in Australia and the reasons for affirming the reasons for not cancelling his/her visa outweigh the reasons for cancellation.  It is important to note here that no concrete criminal conviction is required to establish the Minister for Immigration and Border Protection’s belief of an individual being such a risk. Thus, Anna, due to the criminal charges brought about against her is liable to have her visa cancelled by the Minister for Immigration and Border Protection and it would be a legally valid cancellation. Moreover the criminal charges brought against her were grave and despite her claiming that she was acting as an agent of her employer it cannot be sufficiently affirmed as the employer was no longer alive to be cross-examined. Anna also did not respond to the NOIC and thus lost her ability show cause. Thus, the findings against her, though widely discretionary and arbitrary, are allowed by statutory law and do entitle the Minister for Immigration and Border Protection to cancel her visa. Anna could not successfully refute such a decision by the Minister.

2). As stated in the background facts of the case Anna’s student visa (subclass 500) was cancelled by the Minister for Immigration and Border Protection due to criminal charges brought against her the gravity of which would make her a threat/risk to health, safety and good order within the Australian Commonwealth. This visa was cancelled by virtue of Section 116 (1) (e) which states that the Minister for Immigration and Border Protection may cancel a visa if he is satisfied that the person is or would be a risk to the health, safety or good order of the Australian community.

However, the same can be refuted as the parameters stated for such a determination as prescribed by the act are vague and ambiguous. The determination thus gives widely discretionary powers to the Minister for Immigration and Border Protection and can be challenged on the grounds that Anna was never actually convicted of any crimes. This legal challenge however would have to be well established as the act does not have any limitations on the powers of the Minister for Immigration and Border Protection as conferred by the provisions of Section 116 of the Act. Anna has however declared before the tribunal that she would not be returning to her interpreting and translating course by virtue of which her second student visa (subclass 500) was granted to her by the authorities. This could be construed as an intention that goes against her student visa as the visa is granted purely because of the educational endeavor mentioned by the applicant.

Further, Section 116 (1) (a) confers a power of cancellation on the Minister for Immigration and Border Protection in case the visa in question was grated wholly or partly owing to a fact or circumstance and that fact or circumstance was no longer in existence. Anna’s student visa (subclass 500) was granted based on the fact that she would be pursuing a translation and interpretation course in Australia. Under the present set of circumstances she would no longer be pursuing the interpretation and translation course and has made it clear that she has no intention of returning to the same. In such an event the fact or circumstance that lead to the approval of her visa is no longer in existence and thus it is liable to be canceled as per the provisions of Section 116 (1) (a) of the Migration Act, 1958. If the Minister for Immigration and Border Protection cancelled her visa by virtue of Section 116 (1) (a) there would be no chance to refute the same as it has been adequately and precisely provided for the act and does not leave room of liberal or discretionary interpretation. Thus her intention to not return to the course does act as contributing factor to the cancellation of her visa even though the authorities have not identified or recognized the same and have cancelled her visa by virtue of Section 116 (1) (e) of the act.

3). It has been discussed above that as per the provision of the Migration Act, 1958 visas that are approved can be cancelled by virtue of Section 116 and Section 501 of the Act. Section 501 of the act mandates that a visa can be cancelled if the person applying or holding the visa fails the mandatory character test (which means they have a substantial criminal record) and/or the person is presently subject to full-time imprisonment. For the purposes of this section it has been determined that a substantial criminal record would mean that the person has been subject to 12 months imprisonment at least. Thus the criteria prescribed under Section 501 of the act are adequately clear about the circumstances that would lead to such a cancellation.  For the purposes of Section 116 however, especially Section 116 (1) (e) are not clearly defined and are majorly discretionary.

As per Section 116 (1) (e) the criminal record held by the person does not have to be substantial (as provided for the purposes of Section 501), a visa holder also does not have to explicitly be convicted of a crime and a person whose out on bail and remand can also have their visas cancelled by virtue of this section. Thus pending criminal charges or criminal allegations which have not been established can be sufficiently applied as criteria for cancellation of the visa under the provisions of Section 116 of the act. Thus the charges brought against Anna (though not amounting to conviction) would be sufficient to lead to a cancellation of her student visa (subclass 500) by the Minister for Immigration and Border Protection or his delegate. This is what has happened in the present scenario and cannot be refuted by Anna as there aren’t any protections afforded by the act for such a cancellation.

Reference:

Statutes

Crimes Act, 1900.

Migration Act, 1958.

Articles

Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and social exclusion. Oxford University Press, 2013.

Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership in a changing world. Brookings Institution Press, 2013.

Argent, Neil, et al. "The amenity principle, 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 migration and diversity in Australia: introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.

Castles, Stephen, Hein De Haas, and Mark J. Miller. The age of migration: International population movements in the modern world. Palgrave Macmillan, 2013.

Freilich, Joshua D., and Moshe Addad. Migration, culture conflict and crime. Routledge, 2017.

Mantu, Sandra. Constructing and imagining labour migration: Perspectives of control from five continents. Routledge, 2016.

Ombudsman, Commonwealth. "The Department of Immigration and Border Protection: The administration of Section 501 of the Migration Act 1958." Canberra, Australia: Commonwealth Ombudsman (2016).

Pickering, Sharon, and Julie Ham, eds. The Routledge handbook on crime and international migration. Routledge, 2017.

Piper, Nicola. "International Migration and Gendered Axes of Stratifi cation: Introduction." New Perspectives on Gender and Migration. Routledge, 2013. 15-32.

Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40.12 (2014): 1915-1933.

Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-266.

Sonn, Christopher C., et al. "Negotiating belonging in Australia through storytelling and encounter." Identities 21.5 (2014): 551-569.

Tang, Angelina Zhi Rou, et al. "Where are the overseas graduates staying on? Overseas graduate migration and rural attachment in Australia." Applied geography 53 (2014): 66-76.