Migration Law The Migration Act 1958

Question: Describe about the Migration Law for The Migration Act 1958. Answer: 1. Billy is a citizen of New Zealand by status and he had migrated from New Zealand to Australia in 2001 when he was 21 years old. He had come to Australia with a special type of visa which is classified as subclass 444. This visa is allowed to the citizen of New Zealand to enter into Australia for the purpose of visit, study, stay or work at Australia. This visa is temporary in nature and can be continued till the applicant is citizen of New Zealand. There are certain conditions for availing this visa which Billy had met and he had joined a work at Tasmania in a mine[1]. Now Billy had reached the age of 36 and got accustomed with the life style of Australia. Along with other habits, he had gathered vices of Australian life culture. On day he drank in the pub with his friends to celebrate his birthday and got eradiated. Later on he had driven through the road with his car and run over four teenagers with the impact of his drinking habit. While he had been taken to the police watch house for dangerous driving with the influence of alcohol causing death, the next blow had come from his neighbor Sally Fields who had framed him with the charge of molestation of her 13 year old daughter Emily since when she was 7 years old. As a result, he had been convicted and sentenced to 5 years imprisonment. It is also in the card, that he might be deported from Australia by the Minister. Being worried, he had sought for legal advices which had been given through the letter below: Letter to Billy Elliott Mr. Billy Elliott, dated 26.10.2016 Tasmania, Australia Subject: Legal advices sought for avoiding Deportation fro Australia Dear Sir, As you have requested for legal advices related to the above subject with the consequences of the latest happening of rash driving and child molestation caused by you, we are giving below the questions placed by you with the legal answers and justifications for your notice:- Question Is there any chance of my deportation from Australia for the latest happenings? Answer As the happening of rash driving caused by you resulted to loss of four innocent teenagers under the influence of alcohol and the child molestation, you are convicted and were sentenced to five years imprisonment by the Court. The next probable step by the Minister of deporting you from Australia may happen as you are charged with molestation and this directly raises finger about your character. Justification Migration Act of Australia, 1958 is covering the area of deportation u/s 201 and 501 with various clauses which are applicable in your case[2]. Given below the enforcement of section 201 of this act which is applicable for you related to eligibility criteria for this section: The person with the status of non-citizen is being convicted in Australia with an offence-U/s 201 (a) The convicted is a citizen of New Zealand who was privileged with the criterion of staying in Australia with the power of special category visa falling under subclass 444 u/s 201 (b) (ii). The person has committed the offence for which he was sentenced to imprisonment for not less than one year u/s 201(c)[3]. As per the record, you are qualifying the above conditions and may be legible for deportation from Australia. Given below the enforcement of section 501 of this act which is applicable to you so far refusal or cancellation of special type of visa on the ground of character by the Minister: This is entirely the prerogative of the Minister to cancel or refuse for further visa under special clause meant for New Zealand citizen covered under subclass 444 u/s 501 (1). The Minister may suspect if the candidate had not passed the character test where character test is defined under sub section 6 of this act u/s 501 ( 2) (a). The person could not justify his action to the Minister regarding the character test u/s 501 (2) (b)[4]. The Minister of Natural Justice has to satisfy himself that the person has not passed the character test under sub section 3A (a) with sub clauses (i) and (ii) Section 501 (3A) (b) highlights that the cancellation or refusal of visa may be done by the Minister in case of imprisonment of the person for violating Commonwealth Law. Section 501 (6) (c) implies that the past and present general conduct of that person towards an offence is encouraged. Sub clause of section 501 3A (a) (ii) says that the respective character test of the person is to be satisfactory for sexual offence, especially in case of child as specified in paragraph 6(e). To substantiate criminal record, section 501 (7) (c) had prioritized the issue of imprisonment of the person for more than 12 months[5]. From the above discussion, it can be concluded that you have no option for getting rid of deportation for cancellation of existing special visa or refusal of new visa for staying in Australia under subclass 444 for New Zealand citizen. But there is some scope of being pardoned by the Honored Minister under the clause of Pardon specified in section 501. There are two different clauses u/s 501 (10) (b) with sub section (i) and (ii). While (i) implies that the person is to be pardoned related to the offence, and (ii) implies that the person was earlier never convicted with that offence[6]. Hence with the above discussion and respective inference, it is advised by me that the plea for pardon is to be lodged to the Minister for not imposing deportation on you, if the same is being initiated by him with proper justification of emphasizing on section 501 sub section (10) (b) (ii). Hope the same will serve your purpose so far legality of anticipated deportation is concerned in case of the recent offences done by you. Thanking you, Yours truly, (S/D) Partner (ABC Solicitors) 2. In consideration of the cancellation of Billys visa under the ground of section 501, 501A and 501B of the Migration Act 1958 by the Minister with his personal decision, it has got enough scope of implying so. The discussion below will give the Minister the power to act so under different section as specified above[7]. Section 501 of Migration Act 1958 of Australia Section 501 of this act has given power to the Minister for cancellation of existing visa or refusal of renewing the visa to the foreign citizen under different clauses which emphasizes mainly on the issue of character test of the person. There are different pre-fixed norms related to this section regarding character test which are being clarified under section 501 paragraphs 6. In this specific case study Billy is a citizen of New Zealand who had come to Australia in 2001 at the age of twenty one and had got an employment in the Tasmania province. He had committed some offence lately which made him convicted with the imprisonment of five years. There are two offences made by Billy one is running over of four teenagers under the influence of alcohol and the other is charge of sexual molestation of a child of 13 years since she was at the age of 7. Both these offences are serious in nature and the Minister has the power to cancel the existing visa of Billy or to refuse the renewal of new visa for him to be in Australia. Section 501 of Migration Act 1958 has given the power to the minister to cancel the visa or refuse to issue a fresh visa for Billy who is staying in Australia with the special visa as he is the citizen of New Zealand. But section 501 subsections paragraph 6 has given clear direction to decide upon this domain related to character test. In this section special reflection is given on the molestation charges on sexual ground with child and left no scope for Billy to get rid of cancellation of visa[8]. Section 501A of Migration Act 1958 of Australia This section is emphasizing on the basic sections and respective of subsection which is mainly concentrating on the character test of the convicted along with the nature of offences. The character test, as per the norms set, is the only guideline for the Minister to cancel or disallow the visa. It is described in section 501A (2) that the Minister can set aside the standing visa with cancellation or refusal of new visa in case he suspects of the disqualification of the person related to character test . Character test is specifically categorized with different level of criminal offences and out of that molestation of child under the ground of sexual offence is specifically mentioned. As Billy is convicted with that along with rash driving under the influence of alcohol for which he was sentenced to five years imprisonment. Both these offences had created enough ground for Billy to get his existing visa cancelled. The minister has the right to exercise the power under subsection (2) o r (3) and the Minister is also not liable to consider the decision if to be exercised or not under the circumstances he is requested to do so. The decision taken my Minister under such circumstances cannot be reviewed which had been initiated under sub section (2) or (3) under the application of Part 5 or 7[9]. Section 501B of Migration Act 1958 of Australia This rule depict that if the Minister or his designated authority has taken any decision to cancel the existing visa or refuse to renew the existing visa u/s 501B section (1) or (2), the same can not be set aside. The criterion of this decision is mainly emphasizing on the passing of character test which Billy will fail. The rule confers the power to the Minister relating to the decision to be exercised on the specific ground of failing character test. Even the Minister has the power to neglect the original decision or any subsequent appeal against this order[10]. All these sections confer the power of discretion on the Minister of natural justice. Section 501, 501A and 501B are instrumental to give the power to Minister for cancelling the existing visa or refusal of renewal of visa to the person, who fails to qualify for the character test. In case of Billy, although he is staying in Australia for more than 10 years, but his recent activities will go against him as those are resulting to imprisonment for five years. Hence the probability of cancellation of existing special type of visa or refusal towards renewing the visa is there from the department of Minister for Billy. As the entire discretionary power is lying with the Minister, no such scope of appealing will stand; except with one option of appeal of pardon for first time happening of this type of offence by him. Retrieval of cancelled visa through appeal So far the case of Billy, if his visa will get cancelled by the Minister, he will not be able to retrieve that through any appeal and had to accept the deportation from Australia which is bit tough for him. The scope of getting pardoned through appeal may not be materialistic, as the crimes done by him are of serious nature and make him failed to pass the character test. Character test is depicted in section 501 subsection c paragraph 6 where he had miserably disqualified due to the committing of sexual molestation of child for long six years. The vague explanation of marrying the child had no effect and the Judge of the court had sent him to the prison for five years. This will go against him, and in case the Minister will initiate the steps for cancellation of visa, he will have no option but to return back to his home land of New Zealand. Bibliography: Aph, 2014. section 501, 501A and 501B of the Migration Act 1958. [Online] Available at: www.aph.gov.au/DocumentStore.ashx?id=e972b77d-5cae-4e25-a27d [Accessed 26 October 2016]. Austlii, 1997. Migration Regulations 1994 - Reg 1.03. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s1.03.html [Accessed 26 October 2016]. Austlii, 2001. Migration Act 1958 - Sect 201. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s201.html [Accessed 26 October 2016]. Austlii, 2015. Migration act 1958 - Sect 501. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html [Accessed 26 October 2016]. Austlii, 2015. Migration Act 1958 - Sect 501H. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501h.html [Accessed 26 October 2016]. Border, 2016. Special Category visa (subclass 444). [Online] Available at: https://www.border.gov.au/Trav/Visa-1/444- [Accessed 26 October 2016]. Coombs, M., 2015. Section 501 of Migration Act 1958 of Australia. [Online] Available at: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd053 [Accessed 26 October 2016]. Grewcock, M., 2011. Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958. [Online] Available at: https://anj.sagepub.com/content/44/1/56.abstract [Accessed 26 October 2016]. Legislation, 2016. Migration Act 1958. [Online] Available at: https://www.legislation.gov.au/Series/C2004A07412 [Accessed 26 October 2016]. Loc, 2015. Guest Worker Programs: Australia. [Online] Available at: https://www.loc.gov/law/help/guestworker/australia.php [Accessed 26 October 2016].