Australian Immigration Law: Cancellation Of Visa Under S.140(1) Essay.

Is s.101 - s.105 applicable to cancellation of visa?

Describe about the Australian Immigration Law for Immigration Law.

The entire assignment deals with the various aspects of the Australian Immigration Law. A UK citizen, namely Jack Harkness holds a subclass 457. He also is an employee of a reputed Australian company Torchwood Ltd. jack is in a relationship with Gwen who also holds a subclass visa as a secondary applicant. Both of the visas have their expiry date on June, 30, 2018. Both of them entered in Australian on September, 2014. After that, they have given birth to a child on May, 2016. The Australian investigation agency started working on the background of Jack and found that he had skipped some information regarding his date of birth and also hides some convictions activities that he had done in the UK. The Notice of Intention to Consider Cancellation (NOICC) was sent to him. However, they do not receive any satisfactory response from him. Therefore the authority decides to cancel both Jack and Gwen’s visa under s.140(1) on the very same date. This study is going to reveal that whether the cancellation of the visas is viable according to the Law or not.

1.b Is this policy valid? If Jack’s application is refused solely on the basis of applying this policy, what prospects does he have for review?

The cancellation procedure of the visas is discussed through the Migration Act 1958. It differs according how the power of cancellation is settled. The major provision of the subdivision C of Part 2 Division 3 of the Act is s 109. This provides the cancellation of a visa if any of the issues of rejection in ss 101 to ss 105 are made[1]. Therefore, it can be said that, ss 101-105 of the Migration Act 1958 applied to the provision of providing wrong information to a particular department regarding a visa application, a passenger card along with any irrelevant document. A person who is not a resident of Australia is also need to produce the changes of circumstances along with the previously produced information which is not proper. Failure to meet with these components permits the ministry to issue a Notice of Intention to Consider Cancellation (NOICC) towards the visa holder[2]. Then the visa holder may argue that the visa should not be cancelled in the ground of any event. Therefore the NOICC should have be very specific while refusing any kind of claim. A major component have found by the Authority which sets some limits to the cancellation procedure of a visa. It is not sufficient to claim that the person who holds the visa has breached a particular section of the proposed Act without providing the actual reasons and situations that can enhance the possibility of breaching a particular section. Then its upto the Minister whether to cancel the particular visa under the subdivision s 109[3].

Validity of the Policy

The section 109 is very much unique among the cancellation power regarding there are the legislative criterias which the Minister should have to consider before cancelling a visa of a person under that particular section. The Regulation 2.41 provides a list of a huge number of components that the Minister should have to take into consideration. Among these, some of the important factors are the characteristics of the proper information or authentic document along with the  situation in which the refusal occurred and the history of immigration; and the general characteristics of the visa holder. Therefore, it is important for the Minister before making a cancellation decision, all the factors needs to take into consideration. Therefore, it can be said that the policy is valid at the same time and non valid. Jack produced inappropriate document regarding his date of birth and he also hides his criminal activities that he had done in the UK and other countries in Europe. Therefore, the Authority served a NOICC under the s.109 of the Act and they have received a less satisfactory response from Jack. Therefore, they have decided to cancel his visa on June 1, 2016. This is partially valid because, the concerned person had submitted bogus documentation to the higher authority and started to reside in Australia with illegal authorization. Therefore, the Australian Authority can cancel his visa before the due date.

On the other hand, they are partially wrong also. At the early stage the authority permits Jack and his partner’s visa upto 2018. However, they are cancelling their visa before the speculated time period. The authority has to consider their background and then decide whether to cancel the visa or not. The concerned person had received the response from Jack and the person should be very careful while studying the response. It needs to look into factors such as why Jack manipulated data regarding his date of birth and why he skipped the crimes that he had done in the UK and other adjoining countries in the Europe.

There should be some issues that the authority should have to take into consideration while cancelling a visa of a person before the time period. The authority must have to know the actual facts regarding the topic that why the person had manipulated the data and whether the person had done some criminal activities or not, or the person was just forcefully dragged into that convictions activity. There is a minor chance that the person was not even indulged with the convictions and he was forcefully dragged into the matter or just trapped into the matter. The authority must provide the person a proper time period to tell about the fact that why he had manipulated the data[4]. There are many aspects that a person can change his date of birth. One of them is, that the person does not properly know his date of birth because he lost his parents at very small age. Therefore, providing the actual birth details can be difficult for that person. In this case, Jack has accepted that he had provided manipulated report regarding his details, however, the authority must have to provide him at least to say what the actual cause of this activity.

What are the justifications for the outsourcing of government functions?

2.a What are the most frequently claimed justifications by governments for the outsourcing of government functions?

Administrative laws are those laws, which deals with the laws of a nation like as the same way there are certain laws that depend from nation to nations and in Australia, there are certain administration laws which are divided in various categories which are as:

Firstly, is the constitutional law: this law states about the laws regarding the constitution of a particular state on any matter it guides the normal citizens of a nation about a law, which is available in a nation like Australia and in other nations also. In other words, it is said in the constitutional laws in Australia, which deals with regarding the rights and freedoms of the peoples of Australia who are living in Australia and the peoples who are going to Australia for any purpose[5].

Secondly, the criminal laws of a nation, it basically states if a person had committed any sort of crime while staying in a particular nation then, that person will be punished under that law. For example in if a person had committed any sort of crime like as theft, burglary, murder or any sort of crime then that person will be punished under the Indian Pennal Code  Act[6].

There are different migration laws for the different countries and this laws are being formed by the Government of that particular nation and if is found that any person have violated that law then he or she will be punished according to the laws of that nation. Similarly, there are certain laws in Australia, which were divided in various groups, which are:

Legislature: this states that about the enactment of the laws and it is used for the supervision purpose. In Australia in order to become a law, it has to be passed under two houses, which are the House of Representatives and the Senate.

The Executive: the executive general consists of the high ministerial control like as the Prime Minister of a particular nation. These executives created the laws and they execute the laws in the system so that it must be followed. The Government general’s assistance is also required to make the law applicable and this assent is known as Royal assent and it is not applicable in Australia.

The Judiciary: it consists all the courts like as the Federal Courts, Supreme Courts and many other courts. It has been found that there has been an overlap between the Judiciary and the executive so in Australia and others the judiciary is completely independent.

Administrative Laws and Their Categories

2.b Given the decision in S v Secretary, Department of Immigration and Multicultural Affairs and comments of the High Court in M68/2015 v MIBP, do you think that outsourcing of immigration detention functions has achieved any of these objectives?

The outsourcing of immigration detention functions has achieved many of these objectives, which are, as we have to identify an alien according in the eye of a law the High Court defines alien that can probably be seen by analyzing the High Court decisions from the 2000s.

Tania Singh was a small girl who was born in Australia by Indian parents who was holding a temporary visas, her family argued that Tania was born in Australia and she was not an alien in this case Australian Government had refused to give her the Australian citizenship under following circumstances which are:

The High Court rejected by saying that she was not an Australian citizen and she is an alien not only this the Australian Government could not simply define the word alien according to its wish on the other hand it did not gave the real indications of that power might be[7].

It had been observed that Tania was an Indian citizen and therefore owed to India and Hayne and Heydden JJ had found it, Later a diametrically approach was taken by Kirby J focusing in that it was the intention of the drafters of the Constitution who have done this and in their view Tania was considered as an alien.

From the above fact, we can say that any person born in Australia can become an Australian citizen if he or she follows or obeys the rules and regulations of that nation.

3. Why merits review of administrative decisions is almost universal in Australia? What objectives successive governments have hoped to achieve by providing access to merits review? Have the objectives been achieved?

Merits review is an administrative reconsideration of a case. The main objective of a merit review is to ensure that the administrative decisions are correct and preferable. The administration must ensure that the law related to the merits of Australia are correct and have the all the facts in accordance with the law of the country. The law needs to be preferable as the range of decisions that are made need to be based on the relevant facts. The Government of Australia also ensures the fair treatment of the people residing in Australia. These facts make the merits review a universal thing in Australia.

The merits review is under the Migration Act, 1958. They possess the power to withhold and vary the primary decision made during the constitution of the Act. They can set aside the primary decisions and substitute it with a new decisions based on the increase in the demographic factor of the country. However, the Migration Act, 1958 and the Migration Regulations Act. 1994 specify that the decisions taken against an individual can be reviewed. The reviewing of the decision need time and cost a lot of money for an individual. In order to enter into a mutual consent with the Government of the world, the Government of Australia hoped to achieve the objectives stated in merits review[8].

Fair treatment of the immigrants may help the productivity of the country. Australia is a country that does not possess large industries for an industrial development of the country. The inflow of people from other parts of the world may help the country to develop technically and compete with the other industrially established countries. The merits review also has certain differences with the judicial review of the land. Judicial review is only concerned with the lawfulness of the challenged decision. The court will grant relief only if the review is outside legal limits. However, this is not the scenario for merits review.

Under merit review, the court can grant relief if the individual have the legal documents in accordance with the law. However, violation of severe laws may not allow the court to grant reliefs. The merit review is directed to provide fair treatment to all the people who fall victim to the decisions of the Government. The Government also has certain borders that outline the long term objective of improving the quality and consistency of the decisions. These are based on the primary decisions related to the commencement of the Act. The merit decisions also ensure that the openness and the accountability of the decisions that the Government initially made are enhanced.

Thus, the Government of Australia hoped to achieve all the three objectives by legalising the merits review. Achievement of the three objectives can help the Government to establish good relations with the people. The immigrants who visit Australia are sometimes detained due to the lack of visa or proper documents that proves their identity. The Migration Act, 1958 states that an individual need to possess proper visa and must have a good character background. Character background refers to the absence of criminal records or contact with any criminal person. The judicial laws of the country take precautions regarding this law. Such a law ensures the safety of the Australian land and therefore protects the land from any harmful activity.

The universal acceptance of the merits review can have their disadvantages. Since the review enables granting of relief outside the law, the safety of the country can be at risk. The merits review also does not allow the courts to revisit the subject matter of a challenged decision. The facts presented in the court are normally the errors of the law. Since the judicial agreement has seen certain serious errors created by the court, the Government undertook the merits review. This is the primary reason behind the universal acceptance of the merits review in Australia[9].

The Government focuses on meeting the objectives of the review and attempt to treat the immigrants equally. The openness and the accountability of the decisions help the individuals to challenge openly the decisions made in the court of law. Hence, the Government of Australia has managed to meet the objectives partially. The adoption of the merits review has helped the immigrants lead a prosperous life in Australia. While on the other hand, the merits review have enabled the lives of the immigrants easier it has reduced the safety and security of the land that the judicial law provided. The coexistence of both laws is necessary for the country[10].

Conclusion

In this study, it reveals the various aspects regarding the Australian immigration law and also covers the refugee status part of the countries part. The study shows that an unauthorized a person is residing in Australia with the permission of the authority and suddenly the authority decides that participate is not fit for the country because the person had manipulated the data. The government should have provided the person with a proper chance. However, the person has sent a letter for this issue which is not accepted from the authority side. It also covers the various objectives of the laws such as the decisions which ensure the openness and the accountability for the issue. It also discussed about the ethical issues that the authority should have to take into consideration.

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