Discuss about the Immigration Detention and Visa Cancellation.
The case study describes a scenario where a New Zealand citizen, John Smithers, is faced with possible visa cancellation based on character grounds as provided for under section 501 of the Migration Act 1958 (Cth). Generally, the Act 1958 provides that a non-citizen’s visa is subject to cancellation where they fail to satisfy the Minister for Immigration or their delegates that they have passed the character test described under the Act. Ultimately, cancellation may result in detention and deportation of the visa holder in question; however, various factors must be considered prior to cancelling a visa. The character test mentioned above considered criminal records and conduct that may pose a national threat; a visa holder with a ‘substantial criminal record’ or who has been convicted of certain offences is likely to fail the character test and as such may be at risk of visa cancellation.
John Smithers, the visa holder in question, is a 24-year-old New Zealand Citizen who has been living and working in Australia for the past 10 years under a Special Category (Temporary) Sub-Class 444 visa together with his elderly parents. Over the past five years, while working at Toyota, Smithers appears to have fallen into bad company and has been faced with various convictions. He has been charged with drunken behaviour, driving without a license, assault, careless driving and most recently burglary with a dangerous weapon. His most recent charge led to a conviction of 3 months imprisonment and a three thousand dollar compensation penalty. John recently found out he would be becoming a father and this has triggered a sense of remorse; he has sort treatment and it is believed that he will be rehabilitated. However, his previous conduct has led to a review of his visa and as such he has been issued with a Notice of intention to Consider Cancellation (NOICC); the notice cites character grounds under s 501 (2) of the Act 1958. The following discourse aims to examine the prospects of success for cancellation with regard to the notice as well as any options available to John Smithers in the event that his visa is cancelled.
An Evaluation of the Prospects of Success for the NOICC
According to s 501 (2) of the Act 1958, the Minister may cancel a visa already granted to a person where they have reasonable justification to suspect the person has failed the character test set out under s 501 (6), or where the visa holder fails to satisfy the minister that they have passed the test; this provision implies that a visa holder has the right to respond or challenge the Minister’s suspicions by providing proof that they pass the test within the reasonable time frame which is usually set out in the NOICC. As such, although the ultimate decision lies with the Minister, communication with the visa holder is necessary to avail them an opportunity to defend their character.
As aforementioned, the Act 1958 sets out criteria for the character test which guide the Minister in determining the fate of the visa holder. The criteria set out under s 501 (6) (a) to (d) include: “a substantial criminal record, conviction for immigration detention offences, association with persons or organisations suspected of engaging in criminal conduct, past and present criminal or general conduct and significant risk in particular types of future conduct”. Criminal conduct is determined by length or gravity of a sentence; that is, a person sentenced to death or life imprisonment, a sentence of 12months or more imprisonment, two or more imprisonment terms which culminate in a total of 12 or more months imprisonment and acquittal on ground of mental capacity which results in detention at a facility.
In Tewao v Minister for Immigration and Citizenship (2012) Mr Tewao, a New Zealand citizen had been convicted of aggravated robbery and sentenced to three years and three months imprisonment. The prison length satisfied the 12-month criteria and as such created a substantial criminal record which created character grounds for visa cancellation. Mr Tewao attempted to challenge the decision but courts upheld that his conduct was of a serious nature and that there was a low-moderate risk that the conduct could be repeated. The nature and seriousness of the offence amounted to a national interest to cancel the visa.
In determining whether a visa holder is at risk of cancellation based on grounds of imprisonment sentences, it is important to note that aggregate sentences, time on remand, time serves as well as suspended sentences are considered. Under section 501 (3A) time serves may be considered in determining the 12-month imprisonment condition; that includes a past sentence or an ongoing sentence. Further, where a visa holder has been convicted with multiple sentences which add up to 12 or more months of imprisonment then they may be at risk of visa cancellation under the discretionary provisions of s 501 (7) of the Act 1958. Additionally, suspended sentences are considered for the purposes of calculating the 12 months imprisonment condition as held in Meng Kok Te v Minister for Immigration and Ethnic Affairs .
The Ministerial Direction No 65 provides further guidelines for consideration with regard to visa refusal and cancellation under the provisions of section 501 of the Act 1958. According to the direction, one of the considerations to make is the nature and seriousness of the conduct in question. With regard to this, the Minister or decision maker considers the extent of violence involved, the nature of the crime such as sexual crimes, and the vulnerable group at risk or who were victim to the crime. Vulnerable groups include the elderly, minors and the disabled community members among others. Further, the decision maker considers whether there is a rising trend or increasing seriousness where the visa holder is a repeat offender. Statistics show some of the offences which have led to visa cancellations include assault, robbery, people smuggling and murder among other violent and non-violent offences.
The Minister or their delegate is tasked with providing certain supporting information as a matter of policy when a Notice of Intention to Consider Cancellation is issued under s 501 (2). According to the Procedures Advice Manual (PAM), the notice should include information that highlights which alleged activities or conduct raise suspicion under s 501(2). Where the ground relied upon is a substantial criminal record then the criminal history or official records highlighting the conviction should be referenced. This should include any further evidence or information at the department’s disposal which has been relied on to prepare the notice. Further, the visa holder should be invited to comment or challenge the grounds outlined in the NOICC and the manner for response and jurisdiction for the same should be provided for with the notice.
Having considered the legal requirements and supporting information necessary for the success of a NOICC, the discourse proceeds to apply these findings to the case study in question. Firstly, in considering the establishment of a substantial criminal record, the length of time of imprisonment is a significant factor. John Smithers has been convicted twice, the first conviction carried a two-month sentence which was suspended, the second a three-month sentence which he was to serve. The three-month sentence does not meet the threshold set under the provisions of the Act 1958, however, as aforementioned, suspended convictions are considered for purposes of counting. The overall sentence totals to 5 months, this is still significantly below the set threshold of 12 months. However, courts also consider the seriousness of the offence and the risk of future offences. On his second offence, John Smithers was charged with assault, in his third offence, he was charged with burglary with a lethal weapon. According to statistics, these offences are common considerations for cancellation by the department. Further, his conduct illuminates a trend whereby he appears to be under peer pressure and alcohol influence when he commits offences. However, the seriousness of the offences appears to be escalating. Guided by the rationale in Tewao v Minister for Immigration and Citizenship , these would be sufficient grounds for cancellation. However, the decision maker, guided by the Direction No 65, has to consider other factors such as the impact on family members as well as prospects of reform or rehabilitation. All in all, the final decision lies at the discretion of the Minister and as per the holding in Tewao v Minister for Immigration and Citizenship , the cancellation has sufficient grounds for success.
Options Available to the Visa Holder
According to s 501 CA of the Act 1958, once a decision to cancel a visa is made, the Minister is required to give the non-citizen notice of the decision and invite them to seek revocation guided by the provisions of the Migration Regulations 1994 (Cth). Regulation 2.52 provides for the procedure for making representations to the minister citing reasons why the decision should be revoked. The representations must be made within 28 days after the original notice is given and should be in writing including relevant particulars with regard to the former visa holder. If no action is taken by the visa holder within the 28-day timeline, the right to request revocation of the decision to cancel is lost. Additionally, where a section 501 cancellation is made by a delegate it is possible to appeal or apply for review at the Administration Appeals Tribunal, however, decisions by Ministers can only be subjected to the aforementioned request for revocation.
Guided by the aforementioned provisions, where the decision for cancellation was made by a delegate, John Smithers has the right to apply for appeal at the Administrative Appeals Tribunal (AAT) and highlight reasons why the decision was contrary to the character test and other relevant considerations highlighted under the Direction No. 65. Where he is dissatisfied with the decision of the tribunal, further legal recourse can be sought in court as was the case in Tewao v Minister for Immigration and Citizenship . It is likely, if John Smithers opts to challenge the delegate’s decision, that the case would take longer than the current sentence, as such, it is important to note that he may be held in detention as his appeal is determined. However, where the decision to cancel the visa was issued by the Minister under the discretionary powers provided for in the Act 1958, John Smithers has the option of applying for revocation within 28 days of notice of the decision. This application, as aforementioned, must be in writing and subject to the provisions of the Act 1958. Failure to apply for revocation within the stipulated timeframe would lead to loss of any recourse and as such John Smithers would likely be deported.
Generally, the case study in question explores the grounds and considerations for visa cancellation as well as options available to visa holders whose visas are cancelled under s 501 grounds. According to these provisions, the Minister reserves the right to cancel a visa where they have reasonable grounds to suspect that the visa holder has failed the character test. The test considers the conduct of the visa holder, particularly criminal conduct. Where the visa holder has been convicted or portrays conduct that places the community at risk, the Minster can cancel their visa. The criteria for cancellation include imprisonment for 12 months and more, violent or sexual offence crimes, association with criminal groups among others. As discussed above, the nature and seriousness of the offence or conduct and possibility for repeat offences are also significant in determining the character of the visa holder. The visa cancellation process is likely to succeed as John Smithers conduct has been previously violent, additionally, the degree of seriousness has been escalating with each offence and peer pressure and alcohol influence appear to play a major role in contributing to his conduct. In previous cases, these elements have led to cancellation and deportation of visa holders. However, Smithers convictions do not reach the 12-month threshold and as such he has ground to attempt to convince the Minister or the tribunal to reverse a cancellation decision. This can be done by making a request for revocation where the decision was made by the Minister or an application for appeal with the AAT where the decision was made by a delegate.
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