The Notice of Intention to consider cancellation will have two queries to respond under Section 501, Migration Act 1958. The first one relates to “do you pass the character test”, to be replied within 14 days and the second one is “should your visa be cancelled”? to be replied within 28 days In response to the first question, it is admitted that Wei was convicted of a criminal offence for more than 12 months to prison. However, the circumstances of the conviction must be considered. Firstly, it is submitted that the sentencing of Wei was for 2 years jail term for corruption but he was let off after one and a half years on grounds of good behaviour. Secondly, this was long ago and was practically required in light of common practice to bribe officials to pass goods through customs. Thirdly, after serving his sentence, Wei has stopped this practice and has executed processes in his company to make sure that such corrupt practices do not repeat and has since been running his business for 40 years with no criminal record. This reflects his good conduct during term time and his successful running of the business with care for the law entitles him to pass the character test. Fourthly, besides the criminal conviction, Wei has not had any convictions since the incident. This shows his adherence to the law. Fifthly, Wei has a humanitarian and philanthropic character as reflected by his establishment of several foundations for charity in China for children with Autism. It is worth to mention that Wei frequently does sponsorship for children diagnosed with Autism in Australia.
In response to the second question, it is submitted that Wei and Phey should not be refused visa application on both economic and humanitarian grounds. Firstly, since Wiei has established himself as a very successful businessman with a running import/export business for 40 years, he is likely to make positive contributions to the Australian economy if he is granted the Business Skills (Subclass 188) Visa. Secondly, Wei and Phey’s visa should be granted on humanitarian grounds. This is because firstly, they have family ties in Australia as their children are sponsored by their spouses to be Permanent Resident and citizen of Australia and their grandchildren are living in Australia. Secondly, refusal may cause significant hardship to their family as both Wei and Phey are very close to their grandchildren, especially Lily, who suffers from severe autism. The grandchildren, especially Lily, needs the support of their grandparents and require Wei and Phey’s constant presence for their healthy growth. Thirdly, Wei and Phey do not pose any threat to Australian society as reflected by their law-abiding history during their several visits to Australia on Visitor (Subclass 600) visas.
In the event the application is refused, Wei and Phey may have two possibilities. The first is intervention by the Minister for Immigration. The Minister may, in his discretion, exercise his powers under Section 501B of the Migration Act. In light of such powers, the Minister may set aside an initial decision by the Administrative Appeals Tribunal or a delegate of the Minister with regard to the refusal of the application of visa under Section 501. The Minister may instead apply his own discretion to refuse the visa on the grounds of character. In this regard, the Minister may consider mitigating factors such as the good conduct of Wei during his prison terms and his successful running of the business in regard to the law.
The alternative option is to file an appeal before the Migration and Refugee Division, Administrative Appeals Tribunal as per Section 500 of the Migration Act 1958 in circumstances where the delegate has made the decision but not if the Minister has made the decision as per Section 500(1)(b). The Administrate Appeals Tribunal may affirm, vary or set aside the decision of the delegate with regard to the notice under Section 501 of the Act. It may also return the matter to the Minister or Delegate for reconsideration of the matter along with specific directions.
Upon refusal of visa application, Wei and Phey may apply for a protection visa as per Section 501F of the Migration Act, 1958. As per the same, if a visa application is refused with respect to notice of intention to consider refusal of visa application, then only the protection visa or other type of visa as mentioned in the Migration Regulations 1994 with respect to Section 501F, may be availed of by the person and all other visa applications are deemed to be refused. There are no other listed types of visa applications with respect to Section 501F, Migration Act in the Migration Regulations 1994. Thus, the only recourse would be a protection visa under Section 501E of the Migration Act. Further, Wei and Phey may apply for a ‘removal pending’ bridging visa, per Regulation 2.12AA of the Migration Regulations while in Australia.
As per the assignment question, Wei had applied for a Business Skills (Subclass 188) visa in the Business Investor Stream. Pursuant to the application of the Business Visa, Wei was subject to health and character checks. His police clearance showed that he had a criminal record. The same contained a record for corruption with the sentencing of 2 years jail. He has received a Notice of Intention to consider refusal of visa application under Section 501, Migration Act, 1958. The Notice involves two stages of decision-making. Let us discuss these two stages:
Firstly, with regard to the character test under Section 501(6), there is consideration by the Minister or the delegate as to whether the test has been passed by the person. If in the considered opinion of the Minister or the delegate, it has been satisfied that the threshold test under subsection 501(1), 501(2) or 501(3), the second stage of the decision-making process is triggered, under Section 501. The Minister or the delegate needs to decide on whether they may exercise their discretion to cancel or refuse the person’s visa. By giving a direction under Section 499 of the Migration Act, the Minister may guide by the decision-making process under Section 501.
Let us consider the first stage of the decision-making process. This relates to the cancellation by the Minister or the delegate under subsections 501(1). Under Section 501(1), there may be a refusal by the Minister or delegate to grant the visa if it is found that the person does not satisfy the character test. The exercise of the power under Section 501(1) can be personally done by the Minister or by a Minister’s delegate. Usually, officers from the Department of Immigration and Citizenship act as the delegate of the Minister in such kind of cases. Under Section 501(3) of the Migration Act, there may be a refusal to grant visa by the Minister if it is reasonably suspected that the person does not pass the character test and secondly if there is satisfaction on part of the Minister it is in the national interest to carry out the refusal. This power can be exercised by the Minister only, on a personal basis. The phrase ‘national interest’ has not been defined and it is left to the discretion of the Minister as to the scope of the term in order to determine whether the visa application can be refused.
In determining the character test, reference may be made to Section 501(6) of the Act. As per the same, a person fails the character test if any of the provisions or reasons listed under Sections 501(6)(a) to (h) are not met. These grounds include the existence of a substantial criminal record under Section 501(6)(a). Further, per Section 501(6)(c) the Minister may have regard to the person’s present and past criminal conduct and the person’s present and past general conduct to determine that the person is not of a good character and hence may fail the application of visa of the person. With regard to Section 501(6)(a), “substantial criminal record” has been defined under Section 501(7) of the Act, such as sentence to imprisonment to life including the sentencing of imprisonment of a term of 12 months or more than 12 months to the person. The failure of this provision automatically renders the failure of the character test. This is notwithstanding any factors that serve to be mitigating in the person’s favour.
Wei received the Notice of Intention to Consider Cancellation under Section 501 of the Migration Act 1958 from the Department of Home Affairs (DHA) and the DHA has asked him to provide comments on the same. Along with this, he would have received his criminal record In the instant case, it is found that Wei was sentenced to imprisonment for 2 years i.e. for more than 12 months and hence as per Section 501(7)(c), Wei has substantial criminal record which would automatically disqualify him under the character test stipulated in Sections 501(1) and (3). This would likely lead to refusal of his Business Skills (Subclass 188) visa application by a delegate of the Minister or the Minister unless the Minister personally intervenes under Section 501B of the Migration Act.
In evaluating the response to the Minister of Immigration, the Minister would adhere to the guidelines under Ministerial Direction No. 79 that came into force on February 28, 2019, pursuant to Section 499, Migration Act, 1958. Ministerial Direction No. 79 lays down several considerations with regard to the Minister’s or the delegate’s refusal or cancellation of a visa application. These are mandatory considerations and include certain primary and other considerations. Among the primary considerations, there are considerations regarding the protection of the Australian community, the best interests for children who are minors in Australia and considerations in terms of expectations from the Australian community. While evaluating all such considerations, there may be chances of favouring the applicant on account of his good conduct, lack of criminal conviction apart from the criminal conviction on account of bribery in Australia done out of compulsion, close family ties in Australia, successful running of business and humanitarian grounds of looking after grandchildren, there is a high probability that the application would be refused on account of the mandatory nature of Section 501(7)(c) read with Sections 501(1) and 501(3).
Part 2 of the Code of Conduct for registered migration agents lays down the standards of professional conduct to be followed by a registered migration agent. As per Section 2.7, a migration agent may be asked by a client with regard to the probability of a successful outcome for the client’s application. In such a situation, the client must provide written advise within a reasonable time as to the probability of such a successful outcome. Further, as per Section 2.7(b), the registered migration agent may give the advice orally to the client. In the case of oral advice, it must be the same as the written advice. Lastly, per Section 2.7 (c), the registered migration agent must not give out unjustified or unsubstantiated chances of success while rendering advice to clients, whether in oral form or in writing, with respect to applications under the Migration Regulations or the Migration Act. Thus, I would dispense off this obligation with regard to probability of success of application to be less with respect to Wei and Phey’s application on account of the likely refusal of Business Skills (Subclass) 188) visa application per Sections 501(1) and (3) read with Section 501(7)(c) of the Migration Act.
Migration Act 1958 (Cth)
Migration Regulations 1998 (Cth)
"Code Of Conduct For Registered Migration Agents", Mara.Gov.Au (Webpage, 2017) <https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>
"Cancelling A Visa", Immi.Homeaffairs.Gov.Au (Webpage, 2020) <https://immi.homeaffairs.gov.au/visas/cancelling-a-visa>
"Expedited Review Of Decisions Under Section 501 Or 501CA Of The Migration Act 1958 | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage, 2020) <https://www.aat.gov.au/fact-sheets/migration-and-refugee-review-fact-sheets/expedited-review-of-decisions-under-section-501-or>
"AAT Review - Australian Migration Agents And Immigration Lawyers Melbourne | Seekvisa", Australian Migration Agents And Immigration Lawyers Melbourne | Seekvisa (Webpage, 2020) <https://www.seekvisa.com.au/aat-review/>
Immi.homeaffairs.gov.au. (2020). Visitor visa (subclass 600). [online] Available at: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/visitor-600 [Accessed 7 Mar. 2020].
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