Migration Law Immigration and Visas

Question: Discuss about theMigration Lawfor Immigration and Visas. Answer: Letter of Advice to Billy Elliot To, Mr. Billy Elliot, Tasmania. Dear Billy, It is clear from the case itself that originally you are a resident of New Zealand. But currently you are residing in Australia being a holder of Special category visa[1]. Hence, you are an immigrant in Australia. You have mentioned in your case that at the age of 21, you came to Australia being a holder of a visa of special category and henceforth you are staying here in Australia. After coming to Australia, you have been working in Tasmanian gold mine with a good behavior and reputation[2]. The scenario that you have been accused of is that you with your few workmate have been to a local pub for having beer in order to celebrate your 36th birthday. While returning back from the pub, you in a drunken condition and without any intention have driven over four teenagers who were returning from a party. The teenagers were also in a drunken state. Because of the accident, three of the teenagers died and one of them was severely injured. The police has caught hold of you and has kept you in the watch house. They found you guilty for the illegal act of driving recklessly that has caused death and also driving under influence, i.e., driving in an intoxicated state. By the time you are accused of this happening, Sally Fields, who happen to be your neighbor, have complained against you for molesting his daughter Emily from a long time. And as of now, you are punished and have been sentenced to imprisonment although you have made several pleas before the court[3]. To get out of the situation there are certain legislations and you should have the knowledge of the same. This case of yours will be guided by the Migration Act, 1958[4]. All the cases that are related with the immigrants are dealt by this Act. The provision of the section that will help you is section 201 and 501 of the said Act. The section 201 mentions that a person being a non-resident of Australia have made an illegal act and also have been convicted for the same illegal act in Australia, that person will be send back to his own nation. Originally being a resident of New Zealand and being a holder of special category visa in Australia at present, according to the provision of section 201, the person committed illegal act during his stay in Australia will be send back to the country. The time period of his staying has to be less than 10 years and also that the penalty imposed to that person must be life imprisonment or death; or imprisonment which shall not be less than 12 months . You will also be guided by the section 501[5], where it has been stated that the Minister has the right to ask to deport you back to New Zealand. The provision of the section states that the Minister, if not at all convince that the said accused person is able to attain success in the character test, he has the power to cancel the visa that has already been granted or refuse to grant any visa. The character test means that a person is not supposed to possess any criminal record, or should not have committed any illegal act at the time when he is already been convicted of a petty illegal act and must not give a try to get escaped from the detention. The definition of criminal background or record is that a person is not supposed to be found guilty of any illegal act for which he has been punished by sending him for an imprisonment for a period of 12 months; or have been sentenced to life imprisonment or death; or is released on the ground of insanity. An illegal act of escape from the detention or manufacturing weapons during detention which contravenes section 197 of the Act should not be done by the person[6]. The Minister should not suspect the person to be associated with such a group that has been suspected of getting involved in any criminal activity. The person should not be accused of harming any community or any person of Australia and is not considered to be a threat for the nation. If the person satisfies all these points, he is considered to have passed the character test. Even after passing the test, the Minister, if not satisfied and thinks that the person is not appropriate for the test, he may cancel the visa granted or even refuse to grant any visa. The satisfaction depends on the Minister and the rule of natural justice is not applicable in his decision. The Minister takes his own decision is not influenced by any other person. The decision made by the Minister cannot be reviewed. Since last 15 years you have been residing in Australia, i.e., your stay in Australia is more than 10 years as has been prescribed in section 201 of the Migration Act, 1958. Therefore, a plea under this section can be taken by you. Your next plea before the court should be that you were driving under influence as you were drunk at the time of driving and hence, this cannot make any illegal act. The complaint for molesting Emily should have been made long ago by Sally Fields. Making of a complaint after being convicted of some other illegal act makes no sense. Plea under section 501 can also be taken. It can be refer here that since you are residing in Australia, you have not been convicted of any illegal act and that you do not possess any criminal background. Not for once you were detained because of committing a petty illegal act or no penalty of imprisonment for not less than one year have been imposed on you. You have got good reputation and nature in your workplace and also in t he locality. This has been happening for the first time and has not been done with any intention. If all these pleas can satisfy the Minister, he may decide not to deport you back to your country[7]. But if he does not get satisfied, he may deport you back and the decision made by him cant be reviewed or changed. Regards Cancellation of Billys Visa by the Minister under Section 501, 501A 501B of the Migration Act, 1958 and the Avenues that can be Pursued The fact of this case is that Billy Elliot at the age of 21 has migrated to Australia and since the last 15 years he has been staying in Australia being a holder of visa of special category. Previously he was the resident of New Zealand. After coming to Australia, he has been working in the gold mine of Tasmania. On the occasion of his 36th birthday, he went to a local pub with his workmates to have beers. On the way back home, he without any intention drove over four teenagers who were returning form a party. He did this as he were drunk and was driving under influence. The driving caused death of three teenagers and one was badly injured. The police caught and charged Billy of dangerous reckless driving that has caused death and also driving under influence. Billy was also charged of molesting the daughter of Sally Fields who made a complaint against Billy after he was already convicted. After finding Billy guilty of child sex and driving recklessly and also in a drunken state that has caused death, he was send for five years of imprisonment. Billy got worried as he got the information from his few workmates that the Minister might deport him back to New Zealand for the illegal act committed by him. The Minister after having the knowledge about the case may make up his mind to take decision as per the provisions stated in section 501, 501A 501B of Migration Act, 1958. The provision of section 501 is that a visa may be cancelled or refused on the ground of character[8]. Any person who will not be successful in satisfying the Minister by passing the character test, the Minister can cancel the visa granted or refuse to grant a visa. The meaning of character test is that the person is not supposed to have any criminal background and should not be found guilty of petty illegal acts while he is already convicted and even should not try to escape from detention. The Minister should not doubt on him to have been associated to a group that has been suspected of involving in criminal pursuit. If the person satisfies all these points, he is considered to have passed the character test[9]. If he thinks that the said person has not passed the test, he may cancel the visa of the person or re fuse to grant a visa. He may also go for the cancellation of the visa if he founds that cancellation made is for the interest of the nation and the rule of natural justice is not applicable. The setting aside of the cancellation or refusal of a visa and the other alternative decision that can be taken under subsection (1) or (2) of section 501 is mentioned in section 501A. The delegate of the Minister may take the decision whether to execute or not, the power of refusing or cancelling a visa although the delegate is not at all satisfied by the fact that the character test has been passed by the person. The delegate of the Minister applies the rule of natural justice. The decision made by the delegate of the Minister can also be termed as original decision[10]. The Minister, if not satisfied by the fact that the person has succeeded in the character test and the refusal of the visa or the cancellation of the visa that has already been granted is for the national interest, can set aside the original decision which has been made by the delegate of the Minister. This is an exclusive power that is executed by the Minister. The decision whether to execute the power to cancel a visa or refuse to grant a visa completely depends on the Minister and cannot be influenced by others. The Minister is not bound to consider any situation or requests. No request for the consideration of the decision can be made to the Minister as it cannot be reviewed. The provision of cancellation or refusal or setting aside of the visa and the replacement or alternatives of any decision which is not appropriate under section 501 (1) (2) of the act has been mentioned in section 501B. The section states that the Minister may set aside the original decision that has been made by the delegate of the Minister to cancel a visa or refuse to grant a visa. If the Minister is not satisfied that the said person has passed the character test, he may cancel the visa that has been granted to the person. The decision made by the Minister under this section is not reviewable[11]. If the Administrative Appeals Tribunal, after an application made before it, can review the original decision, the Minister can execute his power to set aside the reviewed decision by the Tribunal. With reference to the case, the Minister may cancel Billys visa on the basis of the factthat he could not be successful in passing the character test which comprises of criminal record or accusation of petty illegal acts[12], harming or harassing any community or person of Australia, or his involvement in any criminal work with a group that is already suspected to carry on illegal activity that may become a national threat. And also that Billy could not satisfy the Minister in any manner. There is no other way with the help of which Billy can request for review of the decision made by the Minister. Under subsection (5) of section 501B of the Migration Act, he can apply before the Administrative Appeals Tribunal for reviewing the original decision. Still if the Minister is personally not satisfied, he can even set aside the reviewed decision made by the Tribunal as he is not compelled to abide by the decision made by the Tribunal. Bibliography: Alrc. (2016). Migration Act. Retrieved from alrc.gov.au: www.alrc.gov.au Publications Austlii. (2016). Miggration Act 1958. Retrieved from austlii.edu.au: www.austlii.edu.au/au/legis/cth/consol_act/ma1958118 Australia. (2016). Immigration and visas. Retrieved from australia.gov.au: www.australia.gov.au/information-and-services/immigration-and-visas Australiavisa. (2016). Australian Immigration Law Services. Retrieved from australiavisa.com: www.australiavisa.com/english/compnay_profile.htm Border. (2016). Australian Department of Immigration. Retrieved from border.gov.au: https://www.border.gov.au Comlaw. (2016). Migration Act 1958. Retrieved from comlaw.gov.au: www.comlaw.gov.au/Details/C2011C00893 Digplant. (2016). Migration Act 1958. Retrieved from digplanet.com: www.digplanet.com/wiki/Migration_Act_1958 Edu. (2016). Migration Act 1958. Retrieved from edu.au: usq.edu.au/studentservices/international/visacomp/~/media/USQ... PDF file Ilo. (2016). Australia- Migration Act. Retrieved from ilo.org: www.ilo.org/dyn/natlex/natlex4.detail?p_lang=enp_isn=67436 Legislation. (2016). Migration Act 1958. Retrieved from legislation.gov.au: https://www.legislation.gov.au/Details/C2016C00128 Unimelb. (2016). Migration Act 1958. Retrieved from unimelb.edu.au: https://blogs.unimelb.edu.au/opinionsonhigh/tag/migration-act-1958-cth Visaaustralia. (2016). migration act 1958. Retrieved from visaaustralia.com.au: www.visaaustralia.com.au/tag/migration-act-1958