Migration Law For Immigration And Citizenship: Analysis Of Notice Of Intention To Consider Cancellation Essay. (70 Characters)

Overview of Migration Law for Immigration and Citizenship

Discuss about the Migration Law for Immigration and Citizenship.

It has been provided through the provisions of section 101 of the Migration Act 1958 (Cth) (MA) that a non-citizen has to complete or fill in the application form in a way which ensure that all questions in relation to the form has been answered by the applicant and further the applicant has not provided in the application from any answer which is incorrect[1].  Moreover, it has been provided through the provisions of section 107 of the MA that where a minister comes to a finding that a visa holder which immigration has been cleared acted in con compliance of section 101-105 of the MA a notice may be provided by the minister to the immigrant[2]. In the given situation it has been stated that there was a suspicion on the part of the minister that there has been non compliance on the part of Fadhil Hamdani with section 101B. This is because Fadhil Hamdani has provided to the minister in relation to the protection visa obtained by him information which is suspected to be incorrect by the minister. The Minister does not believe that the situation which has been provided by the applicant that he cannot return to Iraq for the fear of getting killed is correct as the applicant has already travelled to Iraq two times after the protection visa had been provided to him by the minister. Thus in the given situation as section 101(b) has been violated the delegate has a valid right under the provisions of section 107 to issue the NOICC.

This section of the paper will analyze the fact that whether a valid Notice of Intention to Consider Cancellation which has been made by the delegate of the minister is a valid notice or not. It has been provided by the provisions of section 107 of the MA that where a minister comes to a finding that a visa holder which immigration has been cleared acted in con compliance of section 101-105 of the MA a notice may be provided by the minister to the immigrant. In this notice has to be provided by setting out particulars in relation to the possible non-compliance which has been made and further the notice must state that holder of the visa has to respond to the minister within the period set out through the notice. Subsection 107(1)(i) provides that where the holder wants to dispute the non-compliance he must show that there was compliance with the alleged non compliance[3]. In addition if the minister has a conclusion after going through the response provided by the holder that he has still made the non compliance he must ask for  the cause from the holder that why should the visa not be cancelled. Further where the holder has accepted the non-compliance provide reason for the non-compliance and state why the visa has to be cancelled.  The notice should further state that the minister will consider canceling the visa in case the visa holder provide a written or oral notice that they would not provide a response in writing within the prescribed period by the notice. The notice must let the holder know that the obligation they have under section 104 and 105 of the MA is not effected through the notice and stating the effect of section 108, 109, 111 and 112. Further the notice must also require the holder to disclose his current place of abode. The period within which a reply is required must be a period of 14 days or a reasonable period under section 107(1A)[4]. Further it has been provided that in situation where the notice has been responded by the visa holder he or she has to ensure that no incorrect statement is made in relation to the response.

Validity of Notice of Intention to Consider Cancellation

In the case of Zhong v Minister for Immigration and Citizenship[5] it had been stated by the court that in the NOICC it is not enough for the minister to make a generic claim that the visa holder has violated the section of the Act without providing evidence in relation to the circumstances and facts which have been found to have initiated the breach of a specific section. Only after that the decision to cancel the visa under section 109 can be made by the minster. Thus in the given situation it is clear that the minister has the right to issue a NOICC when they have come across any information which may be suspected to have breached section 101-105 of the MA.

In the given situation it has been provided that a NOICC has been issued to Fadhil Hamdani by the Ministry of Immigration. The notice has been provide because the ministry has come across information which suggests that the information which had been provided by Fadhil Hamdani for the purpose of getting a protection visa is incorrect. This is because at the time of applying for a protection visa it had been stated by Fadhil Hamdani to the ministry that he would not be able to return to Iraq as his life is at risk and there is no protection which the local officials of the country will be able to provide him. In the given situation if he returns to the country members of Al queda are going to kill him as they have already caused significant damages to his property by bring his car and house. However in the given situation it has been seen by the Ministry that the visa holder has travelled to Iraq after the protection visa had been provide to him on two occasions. This makes the ministry believe that there are chances that the information which has been provided by Fadhil Hamdani in pursuit of the protection visa is incorrect and his life in Iraq is actually not at any risk. Thus in the given situation the ministry based on the contradictory nature of the circumstances provided during the pursuit of protection visa and while going to Iraq in two occasions has a valid right to issue the notice of cancellation with the above stated particulars to the visa holder. In addition the notice has not made a generic claim but has specified the details of the breach. Thus the notice made by the minister in the given situation is a valid NOICC.

Analysis of the Finding of Minister in Relation to the Circumstances

This section of the paper will analyze the finding of the minster in relation to the circumstances associated with the case of Fadhil Hamdani that the provisions of 101(b) of the Migration Act have been violated.

Section 109 of the MA provides powers to the minister to cancel a visa in case incorrect information has been provided by a visa holder. It has been provided through the provisions of section 101(a) and 101(b) of the MA that a non-citizen has to complete or fill in the application form in a way which ensure that all questions in relation to the form has been answered by the applicant and further the applicant has not provided in the application from any answer which is incorrect[6].  Section 109(1) states that after the consideration of the response provided by the holder under section 107(1)(b) in relation  to the NOICC for the alleged non-compliace, the minister has decided under section 108 of the MA to cancel the visa by giving regards to the provided circumstances the visa may be cancelled by the minister. The minister has the right to decided whether the visa should be cancelled or not after consideration of the prescribed circumstances provided by the Migration Regulation 1994 however the minister has to cancel he visa if circumstances are such that the regulation prescribes the visa to be cancel.

The Migration Regulations 1994 through regulation 2.41 states that in relation to compliance of the provisions of section 109(1)(c) of the MA the following circumstances need to be taken into consideration[7].

1. The correct information
2. Whether the content of the provided document is genuine
3. Whether the decision in relation to providing the visa or making the holder immigration clear has been based on any incorrect information
4. The situation in which the non-compliance took place
5. The situation in which the visa holder is presently in
6. The visa holders subsequent behavior
7. Any other occasion where the non-compliance had been found to have been made
8. The time elapsed since the non compliance
9. Contribution of the holder to the community
10. Any breach of law done by the holder

It has been provided in the given situation that  the minister has taken into consideration the response provided by Fadhil Hamdani pursuant to section 107(1)(b) of the MA. Fadhil Hamdani has responded against the allegation in the NOICC that he has traveled to Iraq to visit his mother who had been ill and who had been admitted to the hospital because of a stroke. On the second occasion he went to Iraq in order to marry his present wife who he met during the first trip. He had further added to his defense that he had a very low profile wedding and stayed in the apartment owned by his brother. The question which had been asked to him in the NOICC was in compliance with section 359A natural justice requirements. In addition to the information the holder along with the response provided a copy of the report of the hospital where his mother was admitted and photographs in relation to his wedding. He has also provided with significant proof that his life was a threat at the time when the protection visa had been provided by giving proof of threat, police reports and the damages incurred by him. In the given situation the minister after considering the response has provided that he is provided incorrect information under section 101(b) by stating that he can no longer go to Iraq as his life is at threat and going to Iraq and staying there for two months. The information to further found to be incorrect as the holder had returned from Iraq safely. Through consideration of the facts it can be stated that the department did not make a correct decision in relation to the breach of section101(b) of the MA. This is because the minister under regulation 2.41 had to consider the situation in which the non-compliance took place and  whether the content of the provided document is genuine. However the decision of the minister in not based on these facts but on the fact that how did the person came back safely from Iraq which should not be the look out of the minister. The minister should be satisfied that the circumstances in which the holder had to go to Iraq were significant as his mother unwell and he had to marry and genuine proof has also been provided in support. Thus the finding of the minister that section 101(b) has been breached is incorrect.

According to the provisions of section 109(1) of the MA after the consideration of the response provided by the holder under section 107(1)(b) in relation  to the NOICC for the alleged non-compliance, the minister has decided under section 108 of the MA to cancel the visa by giving regards to the provided circumstances the visa may be cancelled by the minister[8]. Further it has been provided by section 109(2) of the MA that a visa may be cancelled by the minister under subsection (1) however the minister has to cancel the visa when the circumstances which are present in the regulations are the very circumstances in which a visa is to be cancelled. Regulation 2.42 of the MR state that the visa must be cancelled if it is against the foreign policy of the county however the minister in this case provided that the visa will be called as International Treaties Obligation Assessment (ITOA) does not provide an obligation for protection. This does not mean that protection is contrary to the foreign policy. In addition no circumstances which are provided by the regulations can be considered as the circumstances which can be applied in this case. Thus the interpretation on the part of the minster of section 109 is not correct.