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Advice Regarding Refusal Of Visa

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Question:

Discuss about the Advice Regarding Refusal of Visa Under Section 501(1) of the Migration Act 1958:
 
 

Answer:

It is necessary that every person must satisfy the character requirement stated in Section 501 of the act, who wants to make enter or stay in Australia, and it also includes peoples who are not the citizens of Australia, sponsors related to visa applicants, and family members who are non-migrating and wants to enter or stay in Australia. It is really a privilege for every citizen to stay in Australia, and it is expected that these people who applied for visa are law abiding, and it is also necessary that visa holders also satisfied the character test stated in Act.

No matter person applied for which visa, it is necessary that any criminal convictions must be disclosed by person if he have inside or outside Australia. As per requirement of character test applicant must submit the police certificates as part of assessment. In case person does not inform about such things then there are chances of refusal or cancellation of visa. Department of immigration and minister have a power of refusal and cancellation of visa on the ground of character test, and minister also have power to grant the visa in case person does not pass character test. Decision is completely based on discretion of minister and department, and it is made after considering all the circumstances of the case[1].

Section 501 of the Migration Act 1958 states that minister has power to refuse the visa application of the person if such person satisfies the minister that he is not able to pass the character test.  It must be noted that character test is stated in Subsection 6 of the section 501 of the Migration Act.

Power is imposed under minister related to refusal of the visa application of person or cancellation of the visa granted to the person if minister reasonably suspect that character test does not satisfied by the person or  as per minister refusal or cancellation is in the national interest[2].

 


It must be noted that if person serving the full time custodial sentence or he or she have ever been sentenced to 12 months or more imprisonment, regardless of actual time served or person have been convicted of, had any charge proven for or he has been found guilty for any sexual based crime which involves child then in such cases visa must be cancelled. Department provide 28 days for the purpose of requesting the revocation of decision of cancellation of visa. In case of request received for revocation in mandatory cancellation visa, department consider all the circumstances.

Section 501(6) of the Migration Act stated the character test for the purpose of visa application approval. As per this section a person will not pass character test if such person[3]:

  • Have a substantial criminal record or he have been convicted for escaping from immigration detention or such person is convicted for any offence which he or she have been committed during the immigration detention, during the escape of immigration detention, after the escape of immigration detention but before he have been again taken into immigration detention.
  • Person is the member of any group or organization, and he has been associated with any such group or person that minister suspected involves in criminal conduct.
  • Person does not satisfied character test if minister suspect on reasonable grounds that person is involved in smuggling, human trafficking, genocide, a war crime, any crime which is against the humanity, any crime related to torture or slavery, and any crime which is subject to international concern at serious level, whether or not such person has been convicted for such crime.
  • If any past or present conduct of person shows that person is not of good character, and if there is any risk which state that if such person is in Australia then he will engage in criminal conduct or harass, molest, intimidate and stalk any other person or vilify any segment of Australian community or incite or discord the Australian community or cause danger to Australian community.
  • Person have been convicted or found guilty for any crime which involve sexual offences related to a child.
  • Adverse security assessment is conducted against the person by the Australian Security Intelligence Organisation, or Interpol issued any notice to the person, which state that person is directly or indirectly cause danger to Australian community or any part of Australian community[4].
 


For the purpose of this section substantial criminal record of the person is clearly depends on the sentence time period imposed by Court of Law, and not that time which person spend in prison. For the sake of character test a person is considered to have substantial criminal record if Court of  law issue sentenced to death or life imprisonment, person is sentenced to time period of 12 months or more, person sentenced to imprisonment for two or more terms, even those terms are served on concurrent basis and when total of such terms are 12 months or more, and if Court found that person is not fit for plead related to offence and as a result have been obtained in facility or institution[5].

In the present case, Emily received notice from immigration department which state the intention to refusal of the application made by Emily under Section 501(1) of the Migration Act. As per the requirement of the Act and part of the application, Emily submit the Malaysian police clearance and such clearance shows that Emily is convicted for the offence of shoplifting a handbag in Kuala Lumpur almost 9 years ago, and that bag was cost for Malaysian Ringgit 3,000 (AUD1,000 approx), and because of this offence she received a custodial sentence of 13 months. Therefore, Emily fails the character test because she has substantial criminal record, and minister has power to refuse the visa application of Emily.

Consequences of Visa application: in case visa of person is cancelled by minister and department then person will become the unlawful citizen of Australia and be held in immigration detention. If visa application of person is refused or cancelled under section 501 of the act then such person is subject to permanent ban from applying for another visa while his stay in Australia and department also cancel any other visa they hold, and permanently exclude the person from Australia.

Some additional consequences are also which are related to visa cancellation such as in case of cancellation of visa of long term permanent residents may be transferred to the country where they have hardly ever lived or never lived, and in country where they have never speak the language or have few or no family connections. Such residents also face separation from their families, friends in Australia.

 


While taking their decision for cancel the visa, DIAC does not consider the time period of stay of person lived in Australia as primary consideration, but some other consideration are taken into account such as age of holder of visa or impact of visa cancellation on family members of the person, and department also consider the age of person he arrived in Australia, but department does not consider time period for which person stayed in Australia at all. As per the commonwealth ombudsman use of section 501 for the purpose of cancelling the visa of long term permanent residents go beyond the original intention of section 501. Therefore, use of section 501 for the purpose of cancel the long term permanent residence visa was not sated in any explanatory memorandum or provision of the Act[6].

Whether it is possible to review the decision made under section 501:

Decision for cancelling the visa can be reviewed but it is completely depend on who made the decision such as whether decision made by the minister itself or by the DIAC as the delegate of minister. If decision is made by the DIAC then Administrative Appeals Tribunal (‘AAT’) has power to review the decision but if decision is made by the minister personally then AAT does not have power to review the decision. There is one exception which state then Federal Court and High Court has power to review the decision made by minister personally related to cancellation of visa under section 501. However, private clause applied on decision made by minister, and as per this clause Court can only review the decision made by minister if decision of minister includes error of law. In other words, Court has no power to review the decision of minister on the basis of any errors in the facts of the case[7].

 


As stated above, as per section 501 of the Migration Act 1958 power is imposed to minister related to some particular circumstances for the purpose of making an initial decision to refuse the application or cancel the visa, or to set aside the decision made by DIAC officer or the AAT for not exercising the power of refusal or cancellation of visa of person and overule the decision with his own decision by refusing or canceling the visa of the person, and minister also set aside the decision made by DIAC officer to refuse or cancel the visa and substitute that decision with his or her own cancellation or refusal. It must be noted that while making these decisions minister is not bound by direction 55 and person cannot apply to AAT for merits review of any decision made by minister. In other words, person can only challenge the legality of decision made by the minister as explained above. There are some situations in which act state that rule of natural justice does not applied to the decision made by the minister for the purpose of limiting the potential for review.

After considering the serious interference in the personal right of the consumer because of the refusal or cancellation of visa on the basis of character grounds, it was stated that power imposed in minister for cancelling or refusing the visa on character grounds are very broad in nature, and therefore it is necessary to subject the decision made by minister to limited review[8].

There is one more option available to person that is Discretionary powers and Ministerial Direction 65, and in this in case person is not able to pass the character test then minister or delegate of minister has power to decide whether or not refuse or cancel the visa of the person. While making the decision authorities consider number of factors which also includes the protection of Australian community, and authority also consider the impact of refusal or cancellation decision on minor children stayed in Australia, and also impact on business interest, and also impact on Australian community if visa is cancelled.  This discretion is stated by Ministerial Direction 65 made under section 499 of the Act[9][10].

In the present case, decision made in case of Emily can be reviewed under direction 65 after Considering the health of Child and business conducted by Emily in Australia.

 

References:

AHRC, ‘Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act’, < https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1>, Accessed on 10th April 2017.

DIBP, ‘Direction 65’, < https://www.border.gov.au/visas/Documents/ministerial-direction-65.pdf>, Accessed on 10th April 2017.

DIBP,’ Fact Sheet - The Character Requirement’, https://www.border.gov.au/about/corporate/information/fact-sheets/79character, Accessed on 10th April 2017.

Human Rights and Equal Opportunity Commission, note 58, paras 104-107.

Legal service commission of Australia,’ Visa cancellations under section 501 (character grounds)’, < https://www.lawhandbook.sa.gov.au/ch24s01s07s01.php>, Accessed on 10th April 2017. 

Migration Act 1958- Sect 499.

Migration Act 1958- Sect 501(6).

Migration Act 1958- Sect 501.

Refworld, ‘Background Paper: Immigration detention and visa cancellation under section 501 of the Migration Act’, (2009) < https://www.refworld.org/pdfid/4a2e35462.pdf>, Accessed on 10th April 2017.

The Australian institute,’ The Dangers of Character Tests’, < https://www.tai.org.au/sites/defualt/files/DP101_7.pdf>, Accessed on 10th April 2017.

DIBP,’ Fact Sheet - The Character Requirement’, https://www.border.gov.au/about/corporate/information/fact-sheets/79character, Accessed on 10th April 2017.         

Migration Act 1958- Sect 501.

Migration Act 1958- Sect 501(6).

Legal service commission of Australia,’ Visa cancellations under section 501 (character grounds)’, < https://www.lawhandbook.sa.gov.au/ch24s01s07s01.php>, Accessed on 10th April 2017. 

The Australian institute,’ The Dangers of Character Tests’, < https://www.tai.org.au/sites/defualt/files/DP101_7.pdf>, Accessed on 10th April 2017.

AHRC, ‘Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act’, < https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1>, Accessed on 10th April 2017.

Refworld, ‘Background Paper: Immigration detention and visa cancellation under section 501 of the Migration Act’, (2009) < https://www.refworld.org/pdfid/4a2e35462.pdf>, Accessed on 10th April 2017.

Human Rights and Equal Opportunity Commission, note 58, paras 104-107.

DIBP, ‘Direction 65’, < https://www.border.gov.au/visas/Documents/ministerial-direction-65.pdf>, Accessed on 10th April 2017.

Migration Act 1958- Sect 499.

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