ASSIGNMENT

Question 1

a) Whether Easton is liable for Visa cancellation under section 501(3A) of the Migration Act 1958 (Cth) or not

The fight between Easton and his best friend George that took place on Easton’s 18th birthday at the large gathering at his family home injured George’s face. Due to this incident, Easton was subsequently charged with assault under section 335 of the Criminal Code 1899. As per the laws and regulations of this legislative law of the Australian government, any individuals who assault another person unlawfully are expected to be considered guilty of a misdemeanour. Even if no greater punishment is provided to that person, the person is liable to imprisonment for 3 years[1]. Therefore, the rules and regulations associated with the legislative act are applicable to the incident that took place on Easton’s 18th Birthday. As a result, Easton pleaded guilty to his offence and was provided with a sentence of imprisonment for 13 months. However, he was released after serving 3 months on parole. Even the Department of Home Affairs in relation to the incident did not contact Easton. The Department of Home Affairs is an administrative authority of the Australian government by which the entirety of the former department of Immigration, border protection, functions that are related to multicultural affairs, management of emergency, security of transport, organised crime, the policy of criminal justice and other are also included[2]. As the governmental department includes the entirety of the former department of immigration, due to the criminal offence made by Easton, he could have been made liable for Visa cancellation under section 501(3A) of the Migration Act 1958 by the Department of Home Affairs. Section 501(3A) of the Migration Act 1858 instructs to cancel Visa when a visa holder is sentenced to imprisonment for 12 months or more. In fact, a visa holder in Australia is also bound to serve a full-time custodial sentence, which is known as mandatory cancellation[3]. As Easton was found guilty and provided with imprisonment of 13 months, as per section 501(3A) of the Migration Act 1858 he is liable for visa cancellation in Australia. The Department of Home Affairs in cancelling the visa of Easton can show a cause that Easton can be dangerous to the Australian community.

b) The process in accordance with the relevant legislation and case law if Easton’s visa is cancelled

The Department of Home Affairs is a delegate of the Ministry of Australia that can refuse a visa of Easton. However, during cancelling a visa of Easton it is necessary for the Department of Home Affairs to ensure that the cancellation of the visa is mandatory by discretionary and by operation of law. If the visa of Easton is cancelled by the Department of Home Affairs, they also have the authority to cancel the visas of Easton’s family members. During cancelling the visa of Easton, it is necessary for the Department of Home Affairs Australia to notify that. However, the administrative authority cannot cancel the visas of Easton’s family members because his wife is an Australian citizen. However, as per section 501(3A) of the Migration Act 1858 of the legislation of Australia, it is necessary for the Department of Home Affairs to notify the character grounds to Easton regarding why the initiative of cancelling his visa is being taken. The Department of Home Affairs must notify Easton that his visa is being initiated to be cancelled because he was found guilty of assaulting and was provided with a punishment of 12 months of imprisonment. He also must be notified to him that it does not matter how much time he has spent in jail before being released on parole. Apart from this, the administrative authority must notify Easton that he has 28 days of time to represent the reasons for which the Department of Home Affairs should revoke the decision of cancelling his visa. Easton must be assured of the fact that all the circumstances of his case will be considered prior to further response against his visa cancellation application[4]. It can be assumed that in meeting the character requirements based on which Easton gained migration in Australia, he will be failed for his criminal offence. Therefore, the Department of Home Affairs must provide him with the opportunity to explain why his visa should not be cancelled. He can display the contributions he makes to the Australian community by being involved in the nursing profession and talk about his family’s future as they are Australians by birth.

c) The delegate may take into account when considering any revocation if Easton’s visa is cancelled

If the Department of Home Affairs cancels the visa of Easton, the delegate will apply for a re-entry ban when considering any revocation.  A re-entry ban can be illustrated as an exclusion period of three years within which a person with a cancelled visa for Australia may not be provided with permission to return to Australia. When a migrant in Australia is asked to reside from Australia for violating visa conditions, a re-entry ban is imposed[5]. The same delegate can consider being involved in the revocation of Easton’s visa if it is cancelled. Easton’s case will be applicable to re-entry because he has violated visa conditions by being a victim of a criminal record. A re-entry ban can be imposed on migrant personnel in Australia as it has been considered as a risk to the health, safety or good order of the community of the nation. Easton has proved himself unsafe for the Australian community by making his best friend injured[6]. In the revocation of the visa of Easton, the delegate will consider the instruction or Direction No 90 of the Australian ministry. As per the instructions of the Ministerial Direction, the delegate will consider the rules and regulations of section 501CA along with section 501 while enhancing the revocation of the mandatory cancellation Visa of Easton[7]. Thus, when enhancing the revocation of Easton’s Visa, the delegate will check whether Easton is applying for a Visa for Australia after spending three years out of Australia or not. Apart from this, Easton can also be asked to explain to the delegate in writing why it should put his entry ban aside and the time of lodging the visa application.

Question 2-Ben

a) The reason behind the risky condition of the EC888 visa of Ben

Public Interest Criteria 4020 can be illustrated as a requirement to gain a grant for a visa in Australia. Under PIC 4020, a delegate of the Department of Home Affairs can refuse the visa of a migrant individual in Australia if false or misleading information or documents are submitted to the AAT[8]. AAT stands for Administrative Appeals Tribunal. It is a group of administrative authorities of the Australian government that provides independent merit of review of a vast range of administrative decisions that are taken by the Australian government including decisions for granting visas. The AAT can refuse the Visa of a migrant individual in Australia due to the submission of false documents or information. Based on the discussed facts it can be finalised that Ben has recently lodged the EC 888 visa that is at risk. The factor is the violation of the truthfulness of the eligibility criteria that is required to be met to get an EC 888 visa as per the policy of PIC 4020. The charge of conviction o procuring engagement in prostitution also put the lodged EC 888 Visa of Ben at risk. The factor is that as the regulations of 2015 measures no 3 and SLI no 184 of 2015 of the Migrant legislation amendment of the Australian government take strict action against human trafficking by migrants (). Thus, a delegate of the Department of Home Affairs can make migrant legislation amendments against Ben for his charge of being involvedin prostitution.

b) Things the natural justice letter contain from the department of Home Affair in accordance with the law

A natural justice letter while advising a migrant individual in Australia regarding its visa application must notify all of the eligibility Public Interest Criteria 4020. The things that must be contained by a natural justice letter are instructed by the Migration Regulations 1994 of the ministry of Australia. As per the regulation, a natural justice letter must inform a visa application that it must satisfy the ministry with its proper identity. Visa applicants must be informed in a natural justice letter that a delegate of the Department of Home Affairs of Australia cannot be satisfied with their identity due to a lack of evidence. In fact, they can be considered as failures to meet the Public Interest Criteria 4020[9]. An individual must be informed in a natural justice letter that if it fails to meet the discussed criteria, a delegate can reject their visa application. The content of a natural justice letter must inform the visa applicants that crosschecking of the documents and information submitted by them will be enhanced by the administrative authorities.  In a natural justice letter, a visa applicant should also be made aware of the fact that its claimed identity cannot be supported by the administrative authorities if unfavourable information is received by a delegate during cross-checks. A natural justice letter must inform visa applicants about the fact that the administrative authorities can trace identity documents with fraudulent information easily[10]. Weight on issues documents that are provided to visa applicants while submitting documents will not be placed by the Department of Home affairs unless historical documents related to identity are submitted by them.

c) Reason for which Ben needs to satisfy subclass 88.215

Most visas require PIC 4020 in order to be granted. If incorrect or deceptive information is provided to the Department or the AAT, PIC 4020 permits the refusal of a visa (). The AAT will have to determine whether or not the following PIC 4020 requirements are satisfied by the visa applicant:

1. There is no proof that they provided, or ordered to be provided, a fake document or data that is untrue or deceptive regarding a visa application or even a visa they held in the year before the application[11].

2. They or a family member had not experienced a visa denial due to one of the following (1) in the three years prior to the application and up until the time the visa was approved or denied.

3. They confirm their identity to the decision-maker.

4. In the ten years before the submission of the visa application until the time the visa was approved or denied, neither they nor a close relative has experienced a visa denial due to reason (3).

Hence, to meet these legal guidelines Under PIC 4020 of subclause 888.215 it is necessary for Ben to satisfy subclass 88.215.

d) Potential ramifications Ben could face in future

Most visas required PIC 4020 in order to be granted. If incorrect or deceptive information is provided to the Ministry or the AAT, PIC 4020 permits the refusal of a visa. In context to AAT if the authority find the applicant’s information to be bogus and associated with the system that affects the interest of Australia leads to ramification of the visa holder or seeker. Besides that if the AAT find the visa seeker is obtaining or seeking a visa that affects the interest of Australian citizen can lead to ramification. This has been the core aspect where Ben can face issues in the system. Apart from that the above mentioned circumstances can lead AAT to waive PIC 4020 leading to loss of the system and other irregular consequences. In some situations, Migration may waive the non-grant periods mandated by PIC 4020[12]. Only in situations where it has been determined that a fake document or incorrect or misleading information has been submitted may a such PIC 4020 exemption be used. The PIC 4020 Movement Regulations can also be waived if the applicant or a member of their family has had a prior visa denied in the past three years as a result of submitting a fictitious document or giving inaccurate or misleading information.

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