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Migration Act 1958 Sections 201 and 501 Provisions

Question:

Discuss about the Migration Act 1958 Sections 201 and 501 Provisions.

Answer:

Introduction

Billy Elliot arrived in Australia under a special category visa (subclass 444) which is a temporary visa that allows New Zealand citizens to remain and work in Australia. A New Zealand citizen can have the ability to be given this visa upon arriving in Australia if;

  • Attains some character and specific health requirements
  • He/she is in hold of a valid New Zealand passport
  • Is a genuine citizen of New Zealand
  • He/she has an incoming passenger card that is completed

Most New Zealanders who live in Australia say that when it comes to legal matters they are usually treated like second class citizens no matter how much time they might have spent in their adopted country[1]. The estimated number of New Zealander who live and worker in Australia today totals up to 600,000 people. Actually most of them live quite a happy life, but when things go sour is when they realise how much limited their rights. In the case of 34 year old Honey Inia who lived in Australia for about 15 years, married and had two kids, realised how much hard it was for her to access her rights after she widowed. She visited Centrelink to see what she was entitled to and in her owns words she stated that, “it was nothing.” Even if her kids were Australians they were disadvantaged because she is a New Zealand citizen. She couldn’t access a widow’s benefit until she attains the age of 65 and over[2]. Things would go quite smoothly if she was an original Australian mother and widow.

The huge number of New Zealanders enriches Australia by paying taxes which are estimated to be $5 billion every year. Tim Gassin says that, “New Zealanders contribute to the economy by their hard work and paying levies and tax,” but still with the cover of Medicare, they cannot get benefits in case they undergo difficult times. They still cannot vote, access students loans or claim welfare. In 2001 legislative changes, rights of New Zealanders have gradually been whittled away[3]. In these changes, “the express way to citizen ship was scrapped, they did away with social security access, in 2005 higher education loans access was removed and in 2012 it was the disconnection of services to the disabled.” States Gassin, a chair of advocacy group Oz Kiwi.

Billy is now in a really hot situation due to the weight of his offences which amount to criminal offences and might be facing higher chances of deportation on character and conduct grounds. The Minister might also consider cancelling his visa. If this is bound to happen the following letter is to notify Billy of his offences, rights and options should that happen.

The letter

Dear Billy Elliot,

Mr. Elliot, due to the concrete evidence on serious criminal offences it is pretty obvious that you might be convicted and sentenced according to the provisions of the law. Reckless driving and specifically child molestation are very serious crimes that cannot be taken rightly in any jurisdiction around the world.

Sections 201 and 501 provisions and requirements

The Migration Act section 201 provides for deportation for non-Australians who have spent a period of less than 10 years in Australia, are convicted for committing criminal offences that are considered serious and sentenced to imprisonment of one or more years[4]. A person who has been lawfully an Australian resident for more than 10 years cannot be deported under section 201, unless in some exceptional circumstances.

Section 501 of the Act consists of two steps in the decision to cancel a visa:

As defined in subsection 501 (6) it must be found out that a visa holder has no passed the character text by the decision make.

Decision maker must consider all relevant circumstances in deciding whether to cancel a visa if the character test is failed by the visa holder.

However it has been discovered that government is putting more emphasis on section 501 of the Act neglecting section 201 much[5]. Since the character and conduct test was introduced under section 501 it has been a custom in dealing with non-citizen convicts portraying them as unlawful non-citizens and likely for exclusion through cancelling their visas on character grounds. Various witnesses have argued that section 501 is used more as a way to bypass section’s 201 particular deportation power.
 
Senate Foreign Affairs, Defense and Trade Committee received undisputable evidence on the use of section 501 to deport residents who spent along tern in Australia on basis of character. According to evidence criminal (section 201), criminal deportation provisions has been abandoned by commonwealth to justify cancellation of visas on character basis as stipulated in section 501 where the convict is a criminal offender. Tension has developed between judiciary and executive. The government supports its actions by arguing that it is its fundamental duty and responsibility to prevent non-citizens and criminals from entering and staying in Australia. Since the executive favors section 501, the minister is most likely to cancel your visa and recommend deportation as you are considered a risk to the Australian community.

Options

Decisions made under sections 201 and 501can be reviewed by AAT. However, if Minister personally intervenes decisions under section 501, it can’t be reviewed and cannot be independently scrutinized or be subject to fairness. If a decision is made by the minister himself it is final and irreversible. DIMIA has duty to give notice to detained criminal offenders that they will be deported upon completion of their sentence. The notice letter should be accompanied with information about their rights to appeal. The notice advice convicts to seek assistance for the appeal by contacting legal aid office (LAO) in their state[6]. To challenge a DIMIA decision is quiet a long and complex process. AAT is represented by a solicitor while the applicant (non citizen) is not represented because there is no free legal representation at the disposal of non citizen either under common wealth legal guidelines or the IAAAS. One more option is hiring private representation which might be unaffordable or otherwise pro bono assistance which comes in handy.

Don’t stop and let your fate be decided. You can always defend yourself at all costs possible.

Warm regards.

2. The minister may make a personal decision to cancel Bill’s visa due to his misconduct and character under section 501, 501A and 501B. Under section 501subsection:

(1) If one passes the character test, he is there in a position to satisfy and convince the Minister not to refuse the grant of a visa to that person. An individual character test is as under subsection 6:

that person’s criminal record is significant, that is; serving death sentence, served two or more sentences amounting to a total of 12 months in prison, sentenced to serve life imprisonment, sentenced for twelve months or more, due to insanity or unsound mind was acquitted of an offence and detained in a facility or the court has found unfit to plead to a committed offence which has substantial evidence linking that person with the offence and due to that was held in a detention facility.

The Minster has a reasonable doubt that the person under test was associated with person, organisation or group that is known to have participated in criminal conduct or the minister doubts the person was associated in conduct consisting of human trafficking, smuggling people, genocide, crimes against humanity, slavery, torturing etc.

(2) a visa granted to a person may be cancelled by the minister if he has reasonable doubts that one hasn’t passed the character test that person doesn’t make the minister believe that he has passed the same test. Note that in minister’s decision there is no application of natural justice

(3) Minister might still refuse or cancel granted visa if he/she believes that person has not passed the character test and justify that he is doing so for the purpose of national interest. 3(A) as in paragraph 6(e) a person is involved in child sexual offences. A non citizen who was charged with such an offence and was released without conviction cannot pass the test and therefore does not qualify to hold a visa or stay in Australia[7]. 3(B) only the minister can exercise the power in section 3 of this act Billy’s visa is subject to cancellation because he has committed sexual offence towards a child. Sally Fields reported that her 13 year daughter was being molested by Emily. Facts show that allegations were true since Billy himself admits to the offence with a silly claim that he was in love. The minister has enough prove to show that Billy does not pass the test even without considering his sentence. This is provided in the migration act 1958 section 501 subsection 6 (e).

Refusal or cancellation of a visa under section 501 can be applied for to the Administrative Appeals Tribunal with regard to the circumstances for review of the decision. Or otherwise challenge the decision in a court of law. For a person to apply to administrative appeals tribunal it depends on who made the decision. It might either be the minister himself or a delegate, for example a DIAC officer. A decision made by a delegate or a DIAC officer is can be reviewed by the Administrative Appeals Tribunal. A decision made by the minister himself is not subject to review by the AAT. In reviewing the pioneer decisions AAT decide wither it was the preferable or the correct decision. AAT can renounce or re-affirm the earlier decision. After denouncing the decision it can make another decision on itself or return the decision to the delegate who might make the decision again alongside recommendations and directions. The minister under some circumstances under section 501 has the power to revoke an earlier decision made by a delegate. The minister therefore can interchange the decision with his/her own refusing or granting the visa. This does not matter if the decision was favouring or unfavourable to the visa holder. The minister’s action is not questionable and he can do this even if the person had applied to the AAT.

Decisions made by either the Minister or DIAC officers are all reviewable by the federal court or the Australian high court[8]. Reviewing of a decision by the high court does not mind on the correctness of the decision but the lawfulness and the legal aspect of the administrative decision.

The facts say that Billy’s visa was cancelled by the Minister himself. This might not be surprising to anyone who hears the verdict given that he/she understands the seriousness of the crimes that Billy Elliot had committed in his adopted country. Since this decision was personally made by the minister the administrative appeals review cannot review it. Only the federal court or high court of Australia has the mandate to review the minister’s decision, not for its correctness but the lawfulness of the decision.

Bill is going to suffer problems experienced by long term residents of Australia who were deported after completion of their jail terms or sentences. For example he may be prohibited to return in Australia, separation from his used culture and friends being returned to a country that he has no social connections or networks to help him move on in life. Nevertheless, even if he is convicted and detained he is still under protection of his human rights like any other Australian.

References

Australia. Migration Act 1958: An Unofficial Consolidation. New York: The Departmen, 2003.

Australia. Human Rights Commission, Australia. Human rights and the Migration Act 1958. Melbourne: Australian Govt. Pub. Service, 2005.

Mirko Bagaric, John Vrachnas. Migration and Refugee Law in Australia: Cases and Commentary. Cambridge,: Cambridge University Press, 2007.

Freckelton, Alan. Administrative Decision-Making in Australian Migration Law. Melbourne: ANU Press, 2015.

Administrative Decision-Making in Australian Migration Law. Canberra: ANU Press, 2016.

Mirko Bagaric, John Vrachnas. Migration and Refugee Law in Australia: Cases and Commentary. Cambridge,: Cambridge University Press, 2007.

Nally, Joseph D. Good Manufacturing Practices for Pharmaceuticals, Sixth Edition. Boca Raton: CRC Press, 2016.

Salinger, Lawrence M. Encyclopedia of White-Collar & Corporate Crime, Volume 1. Thousand Oaks: Sage Publications, 2005.

—. Encyclopedia of White-Collar and Corporate Crime. Thousand Oaks: SAGE Publications,, 2013.

Smith, Peter. Applied Data Structures with C+. Burlington: Jones & Bartlett Learning, 2004.

Australia. Migration Act 1958: An Unofficial Consolidation. New York: The Departmen, 2003..

White, M. W. D. Australian Offshore Laws. Leichhardt : Federation Press, 2009.

 

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