The Migration Regulations - Assignment Example

BLO5607 – Visa Running Head: BLO5607 – VISA COMPLIANCE AND CANCELLATION BLO5607 – Visa Compliance And Cancellation By May 26, 2008 BLO5607 –Visa 2 BLO5607-Visa Compliance Act and Cancellation Q1 Discuss any breaches of the Migration Act that the employer and employees of the BMZ have committed. Ans.: The Resource Manager of the BMZ has committed a violation of the Migration Act of 1958 as amended by the Migration Amendment (Employers’ Sanctions Act) of 2007. The act of engaging the services of three students, two of whom are ex-holders of student visas automatically cancelled due to school attendance violations and the third cancelled due to shoplifting activities. Under s 245AA of the said Act, it is an offence for persons to engage the employment of unlawful non-citizens if such person has knowledge of such status (s 245 AB). The situation at hand falls squarely with the situation contemplated under the aforesaid sections of the Migration Act of 1958. The cancellation of visa gives the effect of rendering the holder thereof as an unlawful citizen. This is set forth in s 15 of the Migration Act of 1958 which states that “if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.” Applying this provision to the case at hand, the three students therefore, became unlawful non-citizens at the time their visa was cancelled and the Resource Manager of the BMZ liable under the said Act. This is because an offense under the said law requires that the person so engaging the unlawful non-citizen for work must have prior knowledge of such status. This is the rule laid down under s 245AB (c) of the amendatory law. BLO5607 –Visa 3 Q2 What are the options available to DIAC in relation to implementing the cancellation of the student visas for non-attendance at class and what options are available to the students in relation to each of the options available to DIAC? Ans.: The Migration Regulations 1994, specifically s 8202 (3)(b), provides for the automatic cancellation of student visas in the event that a student on a student visa has failed to satisfy the requirement on course attendance in accordance with s 19 of the Education Services for Overseas Student Acts 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers for Education and Training to Overseas Students 2007. The usual procedure under this kind of cancellation is initiated by the school where the student holding a student visa is enrolled. If the student has violated the attendance requirement under Standard 11, s 113 (a) of the National Code of Practice for Registration Authorities and Providers of Education and Training Overseas Students 2007 which requires 80% attendance of the total contact hours, then the school is bound to report the matter to the Secretary of the Department of Immigration and Citizenship (DIAC) within 14 days (s 19, § 1 of the ESOS) after the occurrence of such event. The cancellation of the student may automatically take place, once the period given to the student to appear before the authorized citizen has prescribed without such appearance. Thus, s 137J (2) of the Migration Act of 1958 states in part “The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies” which however may not happen if the student makes an appearance before the authorized officer. The implication therefore is that the act of cancellation is automatic without such appearance and in such case the DIAC has no option but cancel the student visa. It is only when the student makes BLO5607 –Visa 4 an appearance in the Immigration office in Australia or in accordance with a notice in the Gazette approved by the Minister (s 137J (b)(2)) and the student is able to provide a good excuse for his absences that there may be a possibility of non-cancellation. Q3 What are the review rights available to the students who had their student visas cancelled for non-attendance at class? Ans.: If the student visa has been successfully cancelled either because the student has failed to appear before an Immigration office within the 28-day prescription period or the student did appear but has failed to convince the Immigration of the cogency of his reasons for failing to abide by the attendance requirements, such student may take recourse in the provision of s 137K of the of the Migration Regulations of 1994. Under the aforesaid provision, a non-citizen whose visa is cancelled under s 137J of the Migration Regulations of 1994 may seek a revocation of such cancellation by writing to the Minister. However, if the visa has already expired rendering its cancellation moot and academic, an appeal will not be entertained.. The application for revocation under s 137K may or may not be successful. It can only be successful if the Minister has determined that there was in fact no violation of the said attendance requirement, or there was an exceptional circumstance beyond the control of the student which caused him/her to breach the attendance requirement, or the existence of any other matter prescribed in the regulation which would effectively absolve and cause the revocation. However, mere ignorance of the student of the existence of the notice as well as the effect of the provision set forth in s 137 J are not reasons that may be considered by the Minister. These are the implications of 137L of the Migration Regulations 1994 vis-à-vis the case at bar. BLO5607 –Visa 5 Q4 What are the review rights available to the student who had his/her student visa cancelled under s 501 for a series of shoplifting offences? Ans.: A cancellation under s 501 of the Migration Act of 1985 necessarily implies that such revocation was because the holder of the visa was suspected of or has subsequently failed the character test. A remedy provided by law for a reversal of such cancellation to which the student in the present case may avail is that provided in s 501C where the Minister is empowered to revoke a previous decision of cancellation, among others. According to the applicable provision of the Act, the usual procedure in the cancellation of visa under s 501 of the same Act is for the Minister to notify the person in writing of the cancellation and the details of such cancellation (s 501 (3)(a)(1)) and invite the person whose visa was revoked under s 501 to make representations within a specific period (s 501 (3)(a)(c). The student in the present case may then take the opportunity to appeal the decision of the Minister by appearing in accordance with the notice and proving that she passes the character test under s 501 of the Migration Act. Although the student was involved in a series of shoplifting, these acts do not exactly constitute substantial criminal records as laid down in 501 (7)(a). In the second place, she was obviously not meted any jail time, or if she was, not for a long period since she is already out and in fact being engaged for employment. Since revocation or cancellation under s 501 allows the application of natural justice, the student, may, in making representations to the Minister set forth cogent reasons why she shoplifted and show the Minister that circumstances has compelled her to act that way and that she will not resort to the commission of the same offense in the future.. BLO5607 –Visa 6 References Migration Amendment (Employer Sanctions) Act 2007 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 The Education for Services of Overseas Students Act 2000. The Migration Act of 1958. The Migration Regulations of 1994. Read More