Background
1. On 4 May 2018, a delegate of the Minister for Immigration and Border Protection (the Minister) made a decision to cancel Anna Do’s (Anna) Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (the Act).
2. The delegate cancelled the visa under s 116(1)(e) on the basis that Anna is, or may, would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
3. Anna is married to Ivan Yao (Ivan). Both Anna and Ivan speak English and Mandarin.
The Minister for Immigration and Border Protection determined that Anna Do’s student visa (subclass 500) is liable to be cancelled and accordingly cancelled the same. This determination was based on a belief that she would be a risk to the health, safety and good order of the Australian community due to criminal proceedings initiated against her following the occurrence of an incident which resulted in the death of her previous employer. The student visa (subclass 500) was cancelled by virtue of the provisions of Section 116 (1) (e) of the Migration Act, 1958[1]. This act governs and regulates the ingress and egress of migrants within the jurisdiction of the Australian Commonwealth. Thus, Anna is currently an unlawful non-citizen residing within the territorial jurisdiction of Australia and is liable to be removed to another country or remain in immigration detention till her case is determined differently. It is pertinent to note that her current visa was granted on the basis of her being enrolled in a translation and interpretation course which she has stated she will not be returning to.
Anna and her husband arrived in Australia in 2013 and Anna obtained a student visa (subclass TU 573) on the basis of a nursing course which she was undertaking at the time. It must be noted here that despite her completion of the course Anna was not registered as a healthcare professional. After completion of her course Anna’s student visa expired and she applied for a subsequent visa based on the fact that she was undertaking a translation and interpretation course in Australia. Accordingly, she was granted a student visa (subclass 500) as per the provisions of the Migration Act, 1958[2]. Thus Anna could reside in Australia till the expiration of her visa which was June 2018[3]. During the course of her Translation and interpretation course Anna was employed at the beauty clinic where her employer was someone who was well versed with medical procedures and surgery. This was alleged because the employer was a surgeon. In the incident in question her employer was administered an enormous dosage of anesthetics which was consequently lethal and resulted in the death of the person. Anna claims that her acts were under the instructions of her employer and as the employer had due knowledge of such procedures she administered the dosage based on the instructions given to her. Anna Do was subsequently subject to criminal charges which were manslaughter, use of a substance that resulted in death and causing hindrances to an investigation under the provisions of the Crimes Act, 1900[4]. She was imprisoned and later released on remand. However, it must be noted that she was not convicted of any of the alleged crimes against her. Thus, in legality she was absolved of all charges and thus all responsibility for the incident. The Minister for Immigration and Border Protection is conferred powers to cancel visas based on the circumstances prescribed by the provisions of Section 116 and Section 501 of the Migration Act, 1958[5]. The provisions of Section 116 however are wider as compared to the requisites of Section 501. Under Section 501 the individual must have a substantial criminal record (which has been determined to be a minimum of 12 months imprisonment which would amount to the failure of a character test) or the individual must be currently imprisoned. Section 116 (1) (e) however allows the Minister for Immigration and Border Protection to cancel any visa where he feels that the person may be a threat to health, safety and order in the Australian community[6]. Thus due to the liberal wording of the section the Minister for Immigration and Border Protection does not need to sufficiently establish the practicality of such a person being a risk to the community but simply determine that the individual may pose such a risk. This thus confers a discretionary power on the Minister and allows him to cancel a wide range of visas purely based on suspicion or belief. Thus for a person visa to be cancelled under the provisions of Section 116 (1) (e) it does not have to be conclusively determined that the person would be a risk to the community and thus a mere suspicion of the individual being such a risk (as would be brought about by criminal charges) is sufficient for such determination[7]. Moreover when a person has been subject to imprisonment it is also sufficient cause for such a determination and subsequent cancellation of the visa. Thus the powers held by the Minister for Immigration and Border Protection in lieu of this section are wide enough to cancel a visa on the basis of a remotely proximate assumption of the possibility of a risk to health, safety and order in Australia. The final determination of Anna’s case by the delegate would thus have to be taken as valid as by the charges of manslaughter and other crimes under the Crimes Act, 1900 she posed a plausible threat to Australian society[8]. However it may be argued that the incident occurred at a beauty clinic and this is not a medical institution and hence would not need to employ registered healthcare professional. It can also be argued that since she has not been convicted of any crimes she should not be subject to such a discretionary decision however the requisites of the Section does not necessitate any evidence that such a person would pose a risk and thus these contentions would ideally not be sufficient to challenge the decision of the Minister for Immigration and Border Protection[9]. Moreover her omission to reply to the Notice of intent to cancel further establishes her deviant conduct and would stand as an additional ground to cancel especially since she speaks English and would be able to comprehend the contents of the Notice.
Cancellation of Anna Do’s Student Visa
As discussed above the cancelation of Anna Do’s student visa (subclass 500) by the Minister for Immigration and Border Protection under the provisions of Section 116 (1) (e) is valid and legally enforceable[10]. However, there are ways that the determination can be challenged. Thus in order to sufficiently cancel such a visa without affording an opportunity for it to be disputed a more concrete ground would have to be applied and is more appropriate for the cancellation of Anna Do’s student visa (subclass 500). It has been clarified that Anna Do resided in the Australian commonwealth by virtue of a student visa (subclass TU 573) which expired with her nursing course she obtained a second visa by virtue of the fact that she enrolled for a translation and interpretation course and has clearly stated on record that she has no interest in returning to the same after the proceedings she went through with the law enforcement. Section 116 (1) (a) states that when a visa is granted wholly or partly due to existence of a fact, if that fact ceases to exist the visa would also be revoked[11]. In Anna Do’s case her second student visa (subclass 500) was obtained due to the existence of the fact that she was pursuing education in Australia. However, with her clarifying that she has no intention of returning to the course it becomes evident that the fact which gave rise to the approval of the visa is no longer in existence. Thus, under section 116 (1) (a) of the Migration Act, 1958 the cancellation of her visa by the Minister for Immigration and Border Protection would be more concrete and would not be challenged[12]. Thus the fact that Anna do does not intend to return to her translation and interpretation course is a valid consideration to be made when determining the status of her student visa. In case of such a cancellation she would be deemed an unlawful non-citizen and would either be detained in immigration detention or removed to her domicile country which is china. These determinations are fast track and once an individual receives a Notice of Intent to Cancel (NOIC) they have 5 working days to appropriately respond to the same[13]. They are then taken into immigration detention where they must defend against the cancellation and a determination is made within a period of our hours. The decision can be challenged before the Administrative Appeals Tribunal (AAT) but must be made within 7 working days from the date of the decision[14]. These parameters are also less vague and arbitrary compared to the provisions of Section 116 (1) (e) and thus are more credible in nature. It would logically follow that if a visa is granted for a particular purpose achievement of the same would be conditional to the existence of a visa.
Powers of the Minister for Immigration and Border Protection
The powers conferred to the Minister for Immigration and Border Protection under the provisions of the Migration Act, 1958 allow him to issue cancellations of visas. The two presiding sections which provide for these powers are Section 501 and Section 116 of the act. As per Section 501 there are two requisites, these are[15]:
- The individual has a substantial criminal record (12 months imprisonment at least).
- The individual has been imprisoned at the moment.
These are well defined and provides for an accurate criteria through which the determination of a visa cancellation can be made. Section 116 (1) confers the power on the Minister for Immigration and Border Protection to cancel a visa. Section 116 (1) (a) states that the Minister for Immigration and Border Protection can exercise this power if he feels that an individual is a threat or risk to health, safety and good order within the confines of Australia[16]. These parameters cannot be interpreted to cover specific circumstances and on the contrary provide for a wide range of circumstances that could be construed to fall under the ambit of this subsection[17]. Thus for a person to have their visas cancelled through this section they would not have to specifically be determined criminals. Any act or omission that could amount to an assumption of such a risk would amount to the cancellation of a visa by the Minister for Immigration and Border Protection. So the pending criminal charges against Anna Do would be construed as an act that gives evidence of the possibility of such an incident in the future and thus would be significant enough to lead to the cancellation of her visa even though the charges may be proved wrong subsequently[18]. Thus, the pending status of the criminal charges against her would not be consideration enough to reinstate her visa or allow a defense against the provisions of Section 116 (1) (e) of the Migration Act, 1958. Anna do’s student visa (subclass 500) would thus stand cancelled.
Reference
[1] Schuck, Peter H. “Law and the Study of Migration.” Migration Theory. Routledge, 2013. 247-266.
[2] Migration Act, 1958.
[3] Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. “Defying the law of gravity: The political economy of international migration.” World Politics 66.3 (2014): 406-445.
[4] Crimes Act, 1900.
[5] Piper, Nicola. “International Migration and Gendered Axes of Stratifi cation: Introduction.” New Perspectives on Gender and Migration. Routledge, 2013. 15-32.
[6] Acosta Arcarazo, Diego, and Andrew Geddes. “The development, application and implications of an EU rule of law in the area of migration policy.” JCMS: Journal of Common Market Studies 51.2 (2013): 179-193.
[7] Freilich, Joshua D., and Moshe Addad. Migration, culture conflict and crime. Routledge, 2017.
[8] Dauvergne, Catherine. “Making people illegal.” Migrants and Rights. Routledge, 2017. 77-94.
[9] Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership in a changing world. Brookings Institution Press, 2013.
[10] Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and social exclusion. Oxford University Press, 2013.
[11] Phillips, Janet, and Harriet Spinks. “Immigration detention in Australia.” Parliamentary Library 20 (2013): 1-8.
[12] McAdam, Jane. “Australia and asylum seekers.” (2013): 435-448.
[13] Lucassen, Leo. “Population and migration.” The Oxford handbook of cities in world history. 2013.
[14] Betts, Alexander. “The migration industry in global migration governance.” The migration industry and the commercialization of international migration. Routledge, 2013. 63-81.
[15] McNevin, Anne. “Forced Migration in Australia, New Zealand, and the Pacific.” The Oxford Handbook of Refugee and Forced Migration Studies. 2014.
[16] Green, Eva GT, and Christian Staerklé. “Migration and multiculturalism.” The Oxford handbook of political psychology. 2013.
[17] Castles, Stephen, Hein De Haas, and Mark J. Miller. The age of migration: International population movements in the modern world. Palgrave Macmillan, 2013.
[18] Aldana, Raquel, et al. Global Issues in Immigration Law. West Academic Publishing, 2013.
Answer 2
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