Australian Migration Law Case Study
In response to the NOICC, there are four main factors to consider regarding the possible cancellation of Mr. Ryan’s Visa. To begin with, the responsibility of the Minister or the delegate is to ascertain the protection of the entire Australian community. As a result, guaranteeing the protection of the Australian community necessitates considering the nature and seriousness of Ryan’s offenses as well as the possible risk of re-offending on the part of the accused. At the beginning, Ryan had committed several crimes that revolved around theft, receiving stolen property and fraud. In accordance with s 501 (2) of the Migration Act 1958, the Minister may consider to cancel an already granted visa if the Minister has a reasonable suspicion that the accused does not pass the character test.1 The Minister may also opt to cancel the visa on the account that the accused does provide substantial satisfaction that she or he passes the character test.
Ryan’s criminal record reveal a different scenario altogether. It is important to understand that the accused did not participate in the unlawful assembly willingly; but was devoted towards helping the woman. In reference to the Ministerial Directive (MD) no 65 that reclines on s 501(6) aa and b, and eliminating the fact that Mr. Ryan had a positive motive to engage in the unlawful assembly, it is evident that the Minister would decide to cancel the visa of the accused.2 The decision emanates from the fact that the Minister would have a reasonable suspicion that the accused is a member of a group of drug traffickers and as a result has the tendency of engaging in unlawful activities. However, considering Ryan’s motive of engaging in the unlawful assembly, it is proper to withdraw the accusations and subsequently exclude him from being one of the members of the unlawful assembly. Following Ryan’s arrest in June 2014 that saw him attend the Narcotics Anonymous Meetings, Ryan decided to ply an honest route that saw him become confident that he would not relapse into the offenses again. Initially, the cause for Ryan’s criminal offenses was the need to meet his demand for illicit drugs. The fact that Ryan was free from the drugs implies that he had decided to adopt a proper lifestyle. As a result, the chance that Ryan will commit similar offenses is so minimal. In fact, Ryan’s involvement in the unlawful meeting emanated from his desire to protect the life of the woman rather than harm her as would have been his decision before the decision to stop abusing illicit drugs.
The other important factor to consider entails the length of time that Ryan has lived in Australia with particular regard to Ryan’s family members that live in Australia and the existing relationship between Ryan and the individuals3. It is apparent that there are two close family members of the accused living in Australia: Stella Buick and her mother, Frances Buick. The birth of Paul, their son also yielded a third close member of their family; precisely a minor. Paul is a minor and an Australian citizen by birth. As a result, Paul depends on his parents for parental care and support. Cancelling Mr. Ryan’s visa would make it difficult for Stella to take care of their son as well as her mother since John Ryan would have to move back to South Africa. It is important for the DIBP delegates to withdraw the NOICC thereby allowing Ryan to continue staying in Australia since Ryan has recovered fully from the drug addiction; a character that lured him to commit crimes before.
As a result, the fact that there is no risk that Ryan will reoffend the community implies that John Ryan passes the character test considering the events that happened prior to the latest criminal charges of participating in an unlawful assembly. From the incident, it is evident that John Ryan intended to help rather than injure the woman as was the intention of the other parties of the assembly that had thrown her to the ground. Even though the double court sentences that yield a sentence period exceeding 12 months necessitate visa cancellation according to s 501 (3A) of the Migration Act, there is substantial evidence that proves that Mr. Ryan is innocent for the second charges. Moreover, Mrs. Ryan, an Australian citizen is a wife to the accused. Mrs. Ryan faces the difficulty of having to take care of their son and her mother single-handedly since Ryan has been playing a significant part in catering for the needs of the family. In the event that the Minister decides to cancel Ryan’s visa, Mrs. Ryan will undergo intense stress in the quest to fend for the family. According to the report of the Forensic Psychologist, Mrs. Ryan appears overwhelmed about the demands of caring for her son and mother single-handedly. The other secondary considerations that emphasize Ryan’s closeness to the Australian family is the fact that there exists independent evidence from two Forensic Psychologist regarding the statuses of both John Ryan and Stella Ryan. On the part of John Ryan, the report states that even though the accused is suffering from Amphetamine-type substance use with moderate severity, Mr. Ryan has recovered fully from his previous addiction to drugs. As a result, he poses a low risk of committing drug-related crimes as compared to the other offenders. On the other hand, Mrs. Ryan exhibits thoughts associated with the fear of losing her husband either through imprisonment or through cancellation of the visa. As a result, the occurrence of any of the adverse judgments would subject Mrs. Ryan to psychological collapse thereby rendering their underage child and sickling mother helpless. Based on the facts, the withdrawal of the visa cancellation notice would be appropriate.
In reference to s 500 (1) b of the Migration Act 1958, Mr. Ryan has merits review rights in the event of cancellation of his visa by the Minister. However, it is imperative that Mr. Ryan should be physically present in Australia at the time of the review application in accordance with s 347(1) and legislation 4.10 of the Migration Act4. Ryan merits the review because there is substantial evidence that portray him as an innocent and changed person. Factors such as the existing family ties to Australia, the accused’s health condition, and independent evidence from the Forensic Psychologist provide enough grounds of argument for the accused to file the merits review application against the cancellation of his visa.5 The accused should also concentrate on the fact that the immediate family depends on his assistance for its survival in Australia.
The time limits depend on the different subsections covered by the review application. In Ryan’s case, the time limit is in accordance with subsection 338 (3), (3A), (4) or (7A). As a result, Ryan should place the review application within 28 days following the reception of the notification according to regulation 010.511 of the Migration Regulation.6 According to the Act, time runs starting from the date of receiving the notification. According to Ryan’s case, the notification reception date is 21 June 2016. As a result, Ryan should place the merits review application before the elapse of 28 days following the reception of the notification; failure to which the Minister will cancel his visa in accordance with the stipulations of the Migration Act. 7
The Minister’s power to cancel a visa on the argument that the accused has failed the character test and exhibited a substantial criminal record emanate from s 501(7) (c) of the Act.8 Instead of considering the conviction as a prerequisite for failing the character test, the Act requires the Minister to include reasonable suspicion as one of the conditions that guarantee the failure of the character test.9 On the part of Mr. Ryan, being sentenced to 12 months imprisonment would result in the serving of multiple sentences whose cumulative period exceeds 12 months. In such a case, the Minister would be responsible for cancelling Ryan’s visa.
In reference to s 501 (2) of the Act, the visa cancellation process employed by DIPB would start with issuing a Notice of Intention to Consider Cancellation (NOICC) after receiving information that Ryan has a substantial criminal record. 10The notice implies that DIPB is considering cancelling Ryan’s visa. As a result, Ryan should act accordingly to prevent the cancellation. In the event that Ryan does not respond appropriately within the 28 days, DIPB will cancel his visa and issue a notice of visa cancellation to Ryan.
Since Ryan’s case involves the cancellation of his visa because he fails the character test, Ryan still stands a chance to place the merits review application in accordance with the Migration Act. The only condition is that Ryan should be physically present at the time of filing the application.
Section 501 of the Migrations Act 1958 gives an immigrant the provision to apply for a merits review to the Administrative Appeals Tribunal (AAT) based on certain circumstances. Marie and Pierre can challenge the refusal decision of the tribunal since a delegate of the tribunal was responsible for the refusal decision. The Act mandates the Tribunal to review the merits of the decision with the objective of ascertaining that it is the preferable and correct decision. There are three possible courses of action for the tribunal: changing the decision, setting it aside or affirming it in accordance with s 43(1) of the Administrative Appeals Tribunal Act of 1975.11 On the part of Marie, the review targets to set aside the decision by issuing the visa. The AAT can refer the decision to the delegate with the updated recommendations and directions. The Minister can also refuse to cancel the visa in reference to s 501A of the Migrations Act 1958.
In order for Marie to make a valid application of the merits review, the application should be made within 9 days following the reception of the visa cancellation notice in accordance with s 500(6B) of the Act.12 Marie should then fill the Application for Review of Decision Form obtained from AAT and send it to AAT via fax or post. The other documents encompass the Notice of the Visa cancellation, and all the other documents that accompanied the cancellation notice in accordance with s 500(6C) of the Act.13
In accordance with criterion 4007 (1) of the Migrations Regulations 1994, the applicant should comply with the request of a Commonwealth medical officer that requires the undertaking of a medical assessment. In reference to the criterion, exercising of the health waiver in favor of Marie’s condition should occur in the event that Marie’s medical condition does not result in undue costs or further pressure on the existing community and health care services that are already in short supply in comparison to the high demand (DIPB 1). However, the medical report provided by Dr. James indicates that Marie’s medication would cost the Australian Community $15,000 per year to guarantee the maintenance of an excellent prognosis. Bearing in mind the already strained healthcare and community resources in Commonwealth Australia, the report contravenes criterion 4007 (1). 14As a result, exercising the waiver in her favor is not appropriate.
However, it is also evident that subclass 100 visas like that of Marie qualify for a health waiver (DIPB 1). Since she is eligible for the waiver, Marie should place the application. It is apparent that the letter or notice that invited Marie to submit details about her medical condition required immediate action on the part of the applicant to guarantee the continued processing of the visa. However, the death of Pierre’s mother drifted the attention of the family towards the notice thereby resulting in their failure to submit the information. The necessity of exercising the health waiver also emanates from the fact that Marie would not strain the available community and health care resources as stated by Dr. James since they have a source of income that will complement the input from the local healthcare resources to maintain the required prognosis.
It is also worth noting that Marie contracting the HIV virus while on duty in Australia. This also explains the reason why her employer is supportive towards assisting her to put up with the situation. Being a registered nurse, Marie and Pierre can contribute to the medical bills thereby reducing pressure on the healthcare and community resources as well as failing to yield undue expenses for the community. As a result, it is imperative that AAT should assess Marie’s waiver application based on her ability as a professional nurse and the ability of her husband, Pierre towards footing her medical bills associated with the prognosis.
Other compassionate and compelling circumstances in the case necessitate exercising the waiver in accordance with regulation 4013(1) (b) of the Regulation.15 For instance, Marie and Pierre have a daughter, Lucy that is also HIV positive. As a result, the family needs guaranteed income from both parents to cater for their family needs as well as medical expenses associated with maintaining the recommended viral loads in both Lucy and Marie. This explains the reason why Pierre is anxious about returning to France. Pierre understands that the reestablishment of the family in France would be a difficult endeavor bearing in mind his employment prospects and the prognosis of Marie and Lucy. As a result, exercising the health waiver to continue the processing of the visa would be a sigh of relief for the family.
The referral of the decision to higher authorities arises in the event that the total medical costs of the applicant are in excess of AUD500, 000. Apparently, Marie’s costs of $15,000 do not sum up to that amount. As a result, there is need for exercising the health waiver. Having eliminated the primary risk that entails straining the already strained community and healthcare resources in Commonwealth Australia, the existence of Lucy, as a child that depends on the support of her parents for existence and survival also necessitates the exercising of the health waiver. Having been born in Australia, it is evident that Lucy is an Australian citizen that should benefit from Australian services; up to and including community and healthcare services. As a result, the failure to exercise the waiver would imply the discontinuation of the visa processing that would result in the transfer of the family to France where Lucy will not have a guarantee of accessing such services.
Moreover, Marie’s family that comprises of her husband, Pierre and daughter, Lucy are situated in Australia. As a result, the establishment of family ties in Australia also necessitates exercising the health waiver. 16There is no evidence that the family will have support when the members travel back to France. In fact, Pierre has concerns regarding his employment upon returning to France. Bearing the information in mind, it is evident that there is no guarantee of adequate support for the family upon returning to France. As mentioned by Pierre, travelling to France will also affect the health statuses of both Marie and Lucy negatively. As a result, exercising the health waiver is necessary to enable the family cater for its needs as well as foot its healthcare and medical bills associated with attaining the excellent prognosis.
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
Department of Immigration and Border Protection (DIPB). Health waivers. (2016).
Department of Immigration and Border Protection (DIPB). What if my visa application is refused or my visa cancelled? (2016).
Department of Immigration and Protection (DIPB). Visas that have a health waiver provision. (2016).
Human Rights Commission. Human Rights and the Migration Act 1958. No. 13. Report, (1985).
Legal Aid. Visa Cancellation Kit. (2011).
Legal Aid. Visa Cancellation Kit. (2016). http://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/visa-cancellation-kit/3.-if-you-receive-a-notice-of-intention-to-consider-cancellation-notice>
Migration Act 1958 (Cth), sub-s 501B (5).
Parliamentary Library Information Analysis Advice (PLIAA). Migration Amendment (Character and General visa cancellation) Bill 2014. Bills Digest. (2014).
The Migrant Women’s Advice Service (MWAS). Public Interest Criteria (PIC) 4007 Health Waiver. (2016).
Defined in sub-s 501B(2) of the Migration Act 1958 (Cth)
2Defined in 501(6) aa of the Migration Act 1958 (Cth)
Ibi 2 See of 501(6) b the Migration Act 1958 (Cth)
Legal Aid. Visa Cancellation Kit. 2011
See L4.10 of the Migration Act
Ibid4 s 347(1)
Legal Aid. Visa Cancellation Kit. 2016.
See regulation 010.511 of the Migration Regulation 1994
Migration Act 1958 (Cth), sub-s 501B(5)
See s 501(7) (c) of the Migration Act 1958
Parliamentary Library Information Analysis Advice (PLIAA). Migration Amendment (Character and General visa cancellation) Bill 2014. Bills Digest. 2014.
10Legal Aid. Visa Cancellation Kit. 2016.
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
See s 500(6B) of the Migration Act 1958
See s 500(6C) of the Migration Act 1958
The Migrant Women’s Advice Service (MWAS). Public Interest Criteria (PIC) 4007 Health Waiver. 2016
See regulation 4013(1) (b) of the Migration Regulation 1994
Legal Aid. Visa Cancellation Kit. 2016.