Graduate Certificate in Australian Migration Law and Practice

Question: Describe about the Graduate Certificate in Australian Migration Law and Practice. Answer: Letter to advise Billy To, Billy Elliot, Tasmania. Billy, Being an original citizen of New Zealand, you are staying in Australia on the basis of a visa of special category. Therefore, you are contemplated as an immigrant in the particular case. It is very clear from the mentioned case that you have migrated to Australia at the age of 21 on the basis of the visa of special category. Since then you are residing in Australia, (Border, 2016). It is a fact that on your 36th birthday, you with some of your workmate went to the local pub to celebrate your birthday by having beer. On the way back home, you drove over four teenagers without any intention. You did this as you were drunk and even the four teenagers were in an intoxicated state as they were also returning from the party. By the accident one of them is badly injured and three of the teenagers died (Australia, 2016). The police found you guilty of the offence committed by you, i.e., driving under influence which caused death and has caught you. During this happenings, Sally Fields, who i s your neighbor had complained about you of molesting Emily, his daughter. Now, you are sentenced to imprisonment even after you made several approaches before the court, (Australiavisa, 2016). You should have the knowledge of the legislation of Australia which will help you to overcome this situation. Being an immigrant in Australia, you and your case will be lead and directed by the Migration Act, 1958 of Australia, (Austlii, 2016). The Migration Act deals with the cases related to the immigrants of Australia. According to section 201 of the Migration Act, you will be deported back to New Zealand. This section states that any person who is a non-citizen of Australia has committed an offence and has been convicted in Australia for the same offence, the accused will be deported back. As you came to Australia with a visa of special category and previously you used to be a citizen of New Zealand, therefore, as per the section 201, any person who is residing in Australia and used to be a citizen of New Zealand will be deported back to his own country for committing an offence during his stay in Australia, (Lexisnexis, 2016). This will be done after calculating the duration of his stay which should be less than 10 years and the punishment given to that person should be death or life imprisonment; or imprisonment for a time period of not less than one year, (Legislation, 2016). There are some provisions mentioned in section 501 of the Migration Act, 1958, (Unimelb, 2016), where a Minister may ask to deport you back to your own place. It has been mentioned in the said section that if the Minister is not satisfied that the accused person has been able to pass the character test, the Minister has the right to refuse the visa or may cancel the visa that has already been granted. Here, it is very important to understand the meaning of the character test. The character test states that a person should not have any criminal background; or should not commit any offence when he is already convicted of small offence. He should not even try to escape from the detention, (Edu, 2016). The criminal background or record of a person defines that the said person should not be guilty of any such offence where he is punished with an imprisonment for 12 months, or have been granted death sentence or life imprisonment; or acquitted on the ground of insanity due to which the per son has been kept in any such institution. Any offence that is against the section 197A of the said Act should not be committed by the person. The person should not be suspected of by the Minister as an associate of any such group that is accused of involving in any criminal activity. The said person should not involve in harassing any person or community of Australia. He should not be a threat for the nation. A person is said to pass the character test if he satisfies these points. If the Minister is not satisfied that the person has passed the character test or is not eligible for the test, he may refuse to grant visa to the person or may cancel the visa that has already been granted. The state of satisfaction completely depends on the Minister himself. There is no application of rule of natural justice. The decision which he takes is his own decision and no one can influence the decision taken by him. The Ministers decision under this sectioned cannot be reviewed. As you have been staying in Australia since last 16 years which is more than 10 years, you can take plea under section 201 of the said Act. The next plea that you can take is that you were in a drunken state and not in a proper state of mind and was driving under influence. Therefore, this cannot make any offence. The next point of your plea is that your neighbor, Sally Fields should have make a complaint against you before if you have been molesting his daughter and should not have waited for you to get convicted of some other offence. You can also take plea under section 501 by saying that from the time you are staying in Australia, you do not have any kind of criminal background and you were not convicted for any other offence before. You were not even detained for any offence or got punishment of imprisonment for a period of not less than 12 months. You possess a good behavior in your locality and in your workplace. All this happened for the first time since you are residing in A ustralia. Nothing has been done with any intention. If the Minister gets satisfied by all these pleas taken by you, he may take the decision of not deporting you back to your own place. But still if he does not get satisfied by your pleas, he may take the decision of deporting you back and this decision cannot be changed or reviewed. Regards Cancellation of Billys Visa by the Minister under section 501, 501A 501B of the Migration Act: The issue of the case mentioned herein is that Billy has migrated to Australia 15 years back at the age of 21 and since then he has been residing there. Originally he is the citizen of New Zealand. He is the holder of visa of special category. He has been working in Tasmanian gold mine. He with his few workmates went to a local pub and had beers on the occasion of his 36th birthday. At the time of returning back home, he being drunk, unintentionally drove his car on four teenagers. Those teenagers were returning from a party and were also drunk. One got severely injured and the other three died. The police caught Billy and charged him of dangerous driving and driving under influence that has caused death. After being convicted, Billy was also charged of molesting the daughter of his neighbor, Emily. The complaint has been made by Sally Fields, which he could have done long before. Billy was sentenced to five years of imprisonment after finding him guilty of driving offence and child sex. He got the information from some of his workmate that he might get deported back to New Zealand by the Minister. This made him worried about his condition. After becoming aware of the case, the Minister may make up his mind and take decisions according to the section 501, 501A 501B of the Migration Act, 1958, (Lawnotes, 2016). The refusal or cancellation of the visa on the ground of the character has been mentioned in section 501 of the said Act, (Comlaw, 2016). The provision of the section states that if the person is not been able to satisfy the Minister by passing the character test, the Minister may refuse to grant visa or may cancel the visa that has already been granted. The meaning of the character test is that the person should not possess any criminal record. He also should not have been held guilty of any small offences and tried to escape from the detention as well. The person should not be doubted to have been an associate of such group that is suspected to have been involved in criminal activities. To pass in the character test, the person needs to satisfy all these points, (Irishbently, 2016). The Minister can cancel the visa that has already been granted to the person anytime if he thinks that the person has not passed the character test. The Minister may cancel the visa if he thinks that the cancellation is for the national interest. The rule of natural justice does not apply in this case, (Ilo, 2016). Section 501A of the Migration Act, 1958, mentions of the provision of setting aside of the refusal or cancellation of the visa and the alternative decision under subsection (1) or (2) of section 501. A decision of not executing the power of cancelling a visa and refusing of granting a visa may be taken by the delegate of the Minister, even if the delegate is not satisfied that the person has passed the character test, (Alrc, 2016). The rule of natural justice is applied in this case. This decision by the delegate can also be called as original decision. The original decision can be set aside by the Minister if he is not satisfied by the character test of the person and finds that the cancellation of the visa already granted or refusal to grant a visa is for the purpose of national interest, (Peters, 2014). This is the power that is exclusively executed by the Minister. The decision to consider the execution of power of cancelling a visa and not granting the same depends on the Minist er himself and is not influenced by others. No requests or a situation is considered by the Minister. No one can ask for reconsideration of the decision made by the Minister as the decision made under this section cannot be reviewed, (Digplanet, 2016). Section 501B of the Act mentions about the refusal or cancellation or setting aside of the visa and the alternatives or replacement of any decision which is not suitable under section 501 (1) (2). The provision of this section is that if any of the delegates of the Minister makes an original decision for refusal to grant visa, the original decision may be set aside by the Minister. He may cancel the visa that has already been granted to the person or refuse to grant a visa if the person cannot satisfy him by passing the character test. The decision made under this section can also not be reviewed. Even if the Administrative Appeals Tribunal review the original decision after an application is made to them, the Minister has the power to set aside the same. In accordance with the case mentioned here, Billys visa can be cancelled by the Minister on the ground that he did not pass the character test that includes the criminal background or conviction of small offences made by him, harassing or harming any person or community of Australia, taking active part in a criminal activity with an association which is suspected to involve in criminal activities that can cause threat to the nation and Billy fails to satisfy the Minister in every manner, (Humanrights, 2016). No alternative way is there for Billy by which he can go for review against the decision made by the Minister. The only option he has is to make an application before the Administrative Appeals Tribunal to review the original decision that has been made by the delegate of the Minister under subsection (5) of section 501B. If the Minister is not satisfied personally by passing the character test, the Minister can set aside the review made by the Administrative Appeals Tribunal as he is not bound to abide by the same. Reference Alrc. (2016). Migration Act. Retrieved October 23, 2016, from alrc.gov.au: www.alrc.gov.au Publications Austlii. (2016). Miggration Act 1958. Retrieved October 23, 2016, from austlii.edu.au: www.austlii.edu.au/au/legis/cth/consol_act/ma1958118 Australia. (2016). Immigration and visas. Retrieved October 23, 2016, from australia.gov.au: www.australia.gov.au/information-and-services/immigration-and-visas Australiavisa. (2016). Australian Immigration Law Services. Retrieved October 23, 2016, from australiavisa.com: www.australiavisa.com/english/compnay_profile.htm Border. (2016). Australian Department of Immigration. Retrieved October 23, 2016, from border.gov.au: https://www.border.gov.au Comlaw. (2016). Migration Act 1958. Retrieved October 23, 2016, from comlaw.gov.au: www.comlaw.gov.au/Details/C2011C00893 Digplanet. (2016). Migration Act 1958. Retrieved October 23, 2016, from digplanet.com: www.digplanet.com/wiki/Migration_Act_1958 Edu. (2016). Migration Act 1958. Retrieved Octomer 23, 2016, from edu.au: usq.edu.au/studentservices/international/visacomp/~/media/USQ... PDF file Humanrights. (2016). Human Rights and the Migration Act. Retrieved October 23, 2016, from humanrights.gov.au: https://www.humanrights.gov.au/sites/default/files/HRC_Report13.pdf PDF file Ilo. (2016). Australia- Migration Act. Retrieved October 23, 2016, from ilo.org: www.ilo.org/dyn/natlex/natlex4.detail?p_lang=enp_isn=67436 Irishbently. (2016). Migration Act 1958. Retrieved October 23, 2016, from irishbently.com.au: www.irishbentley.com.au/migration-act-1958-section-501 Lawnotes. (2016). Australian Migration Act. Retrieved October 23, 2016, from lawnotes.in: www.lawnotes.in/Australian_Migration_Act_1958 Legislation. (2016). Migration Act 1958. Retrieved from legislation.gov.au: https://www.legislation.gov.au/Details/C2016C00128 Lexisnexis. (2016). Australian Immigration Law. Retrieved October 23, 2016, from lexisnexis.com.au: www.lexisnexis.com.au/en-au/products/australian-immigration-law.page Peters, S. (2014). the Migration Act. Retrieved from prezi.com: https://prezi.com/xtfnsr2gq0bz/the-migration-act-1958 Unimelb. (2016). Migration Act 1958. Retrieved October 23, 2016, from unimelb.edu.au: https://blogs.unimelb.edu.au/opinionsonhigh/tag/migration-act-1958-cth