Legal Implications Of Aldon's Visa Cancellation Under The Migration Act 1958 (Cth) Essay.

In light of the preceding, Aldon seeks your immigration assistance in answering the following questions:

(1) Aldon understands that a decision under s 501(3) of the Migration Act 1958 (Cth) must be made by the Minister for Home Affairs personally. Given that the decision to cancel Aldon's visa was made by the Parliamentary Secretary, Aldon seeks advice as to whether he can challenge the decision?

(2) In making the decision to cancel Aldon's visa, the Parliamentary Secretary did not strictly consider and apply Direction no. 65. Aldon seeks your advice as to whether this fact has an adverse effect on the legality of the decision made?

(3) Given the decision to cancel Aldon's visa, what will happen to Aldon in accordance with the Migration Act 1958 (Cth)? Aldon is a citizen of South Sudan.

(4) When making the decision to cancel Aldon's visa, the Parliamentary

Secretary used the title of “Assistant Minister for Home Affairs, which is not provided for by statute in Australia. Aldon seeks your advice as to whether this fact will impact on the legality of the decision made?.

In Australia, the Migration Act 1958(Cth) 501 allows the minister to cancel visa of a permanent citizen on grounds of lack of good character. Once the visa is revoked the person should be deported to his/her country of origin. Aldon can therefore challenge the decision made by the Parliamentary Secretary because he does not have the legal mandate to revoke his visa.  The legal mandate is given to Home affairs minister.  However, Section 501 gives grounds for visa cancellation where the immigration department is satisfied that the holder of the visa is likely to engage in criminal activity or conduct in the country. Second, if the visa holder represents danger to the community. Third, the visa holder would incite discord in the country. Fourth, is not of good character.  The Act gives power to the minister to cancel a visa without applying any procedures like giving prior notice to the visa holder or inviting the visa holder to respond.

This Regulation establishes the form of a visa issued to a foreign citizen, the procedure and conditions for its execution and issuance, extension of its validity, restoration in case of loss, as well as cancellation and applies to all categories of visas.

The cancellation of the visa means that Aldon is in the country illegally and is therefore unlawfully in the country . Thus he should apply for a new bridging visa so that he can pply to the administrative appeals. A tribunal for his visa will sit and deliberate whether to reinstate the visa or if he will be ordered to leave the country.  The cancellation was done by the Parliamentary secretary whose has no legal mandate or authority to cancel  Aldons visa which means that Aldon has a big chance of winning the appeal. Section 501 of the immigration Act only gives powers to revoke a visa to the minister.

If the Parliamentary Secretary did not consider and apply direction no.65, it means that he did not check on the considerations provided for in Part A, Part B and Part C . thus, will have an effect on the legality of the decision made. Part A  identifies the considerations that should be looked into and which are relevant in the determination as to whether to exercise discretion when cancelling a non citizen visa. Annex A of the Act is important because it gives direction on how to apply character test. This means that before cancelling Aldons Visa, the parliamentary secretary did not follow the guidelines set in Direction no. 65 and therefore the decision to cancel the visa may have been wrong because direction no.65 guidelines were not applied.  Aldon is only being suspected of being a member of a gang , the parliamentary secretary should have ensured that the character test is done according to the law to determine whether Aldon has failed the character test. The decision to cancel the visa must be given in full consideration of the circumstances of the case. The purpose of direction no.65 is to provide guidance to decision makers who exercise powers under section 501 of the immigration Act .  This was important for the parliamentary secretary to follow the guidelines given by direction no.65 so as to give Aldon  the due process needed before cancelling the visa.

Can Aldon challenge the visa cancellation?

Aldo is a Citizen of Southern Sudan and his Visa may be revoked by only the minister of Home Affairs as per the Migration Act. Any other person cannot revoke Aldos visa. It is an illegality according to the law. Aldo must be repatriated to his home country of South Sudan since he is engaging in African gang which are outlawed and illegal.

The general consuls are in charge of issuing the visa on behalf of their country, unless the State does not delegate this function to other officials; nevertheless, each State within its sovereignty, decides who enters or not its territory. In the case of Australia, Migration Act 1958 of the immigration and nationality law states that, "After the issuance of a visa or other documentation to any foreigner, the consular officer or the Minister of Home Affairs may at any time at his discretion, revoke said visa or other documentation. Notification of such revocation will be notified to the Attorney General, and such revocation will invalidate the visa or other documentation of the date of issue.

What is the legal effect of the cancellation of the visa to a foreigner by any province? First of all, it must be established that the causes of cancellation of the visa can be multiple, but almost all are divided into two groups, "canceled" and "canceled without prejudice", when the visa is canceled without prejudice, it is almost its great majority by the expiration or term of term, so that it is not stolen or supplanted, and the procedure for the new obtaining has no difficulty; However, when the visa is canceled only or canceled with prejudice, the injured must perform a tortuous procedure to obtain a pardon by the State that canceled the visa within its sovereign and unquestionable faculties.

Consequently, the cancellation of the visa produces as a direct effect, in the first place, a serious suspicion, which falls on the person subject to the cancellation of the visa. In the case of Australia, section of the immigration and nationality law delegates this power over the consular officer, at his discretion, only with the obligation to notify the attorney general of the matter.

In any case, the foreigner who cancels the visa, is prohibited and inhibited from entering the territory of the State that canceled the visa, cannot call those territories to reach any country, cannot enjoy economic and food delicacies in those territories, and can only enter that territory, in case of being extradited.

Did the Parliamentary Secretary strictly consider and apply Direction no. 65?

The parliamentary ministers declared himself an assistant minister which is an illegality. He is not recognized under the law as the Assistant minister for Home affairs. Although Aldo is involved in an African criminal gang, he still has a valid visa until the minister for Home affairs is back to office. This is according to Migration Act ( 1958) .The reasons why a valid visa can be canceled in Australia are many and its consequences too.

Keep in mind that Australia authorities are the only ones with the authority to grant and cancel any visa for that country, and in their decisions there is no obligation to provide any explanation about their reasons. If a visa has been canceled it is possible that it can be requested again, depending on the existence or not of sanctions notified and other factors. That depends on the specific case.

 For legal sanctions in your country of residence, political affairs and other diplomatic and security reasons.

The most common cause is to stay in Australia for longer than allowed.

Another important and frequent cause is when the immigration control officer (CBP) who is in Australia Customs or gateway, believes that a person who was previously granted the visa was ineligible or inadmissible to enter Australia or was became ineligible or inadmissible after having been approved the visa can proceed to its cancellation.

If the consular officer at the port of entry assumes or is certain that the foreigner is going to work in Australia. Only citizens, residents and holders of visas that allow work or have a work permit can work legally. In any case, foreigners with a tourist visa can accept paid work. The Australian authorities are the only ones with the power to grant visas and they are the only ones that can cancel them. If you want to keep the visa, do not incur any activity not allowed according to Australian immigration laws.It is much easier to get a visa and keep it than to solve the problems created by a canceled visa. If you already have it, protect it and avoid cancellation by complying with the law.

References

Barker, David, Essential Australian Law (Routledge/Cavendish, 2007)

For Your Information (Australian Law Reform Commission, 2008)

Harvey, Callie, Cornerstones Of Australian Law (Tilde University Press, 2009)

HARVEY, CALLIE, FOUNDATIONS OF AUSTRALIAN LAW (TILDE UNIV PR, 2017)

Howe, Joanna and Rosemary J Owens, Temporary Labour Migration In The Global Era

Mann, Trischa, Australian Law Dictionary

Parkinson, Patrick, Tradition And Change In Australian Law

Vrachnas, John, Migration And Refugee Law In Australia (Cambridge University Press, 2007)

Vrachnas, John, Migration And Refugee Law (Cambridge University Press, 2012)