Visa Compliance - Cancellation and Review

Question: Discuss about the Visa Compliance,Cancellation and Review. Answer: Introuction In appealing against the decision by the immigration department, Lily has four options. She can appeal at the Migration and Refugee Tribunal, she can appeal to the Minister for Immigration, she can use the courts or she can appeal at the Administrative Appeals Tribunal. During the appeal, tribunals are always concerned with the facts under consideration and circumstances that led to the revocation of the visa. They are also guided by the law; hence, they are forced to make a decision based on merit. The review is always seen as a second attempt. Lily can appeal to the minister of immigration. The minister of immigration has the power to grant or revoke a visa. This is despite refusal by the tribunals or the immigration department. The minister normally uses this power, if the issue under consideration is a matter of public interest. This is a power that is contained in Section 48B of the 1958 Immigration Act.[1] Lily can also seek the protection of theFederal Courts. However, this process is complex, because the courts are concerned with a matter of the law. The courts will seek to identify if an error of the law occurred, while revoking the visa. Basing on these facts, because Lily was in an immigration detention, the time she had for making her appeal is 7 days. Lily cannot apply for a partner visa and succeed because she was unlawful non-citizen. Section 15 of the 1958 immigration act denotes that, if a visa is cancelled, the holder of the cancelled visa becomes un-lawful non-citizen.Additionally, section 48 of the 1958 Immigration Act limits the kind of visa unlawful citizen can apply[2]. Unlawful citizen can only apply for a Partner Visa, Protection Visa and Child Visa.However, to qualify for these types of visa, the applicant must prove that he has satisfied the provisions of Clause 3004 of the 3rd Schedule of the 1994 Migration regulations. According to this clause, a visa applicant will qualify for a new visa application, if he had satisfied the requirements of the previous visa. Lily violated the terms of her visa by engaging in work. In the 2014 case of Montero vs. Minister of Immigration, the Federal Court made a ruling that it is only upon the satisfaction of Clause 3004 that a new visa can be granted after the expiry or cancellation of an existing visa[3]. Furthermore, for a person to qualify for a partnership visa, they must have a relationship for about one year, and they must prove that their relationship is genuine. This is a provision contained in the 1994 Migrations Regulation Schedule 2[4]. Lily can appeal against this decision to the Administrative Appeals Tribunal under the provisions of section 501 of the 1958 Immigration Act. This is a provision that deals on the character of an individual. It identifies the characters whose visa applications must be rejected and revoked.The time limit that can be used to appeal is within nine days, and the application fee is $1,673. The tribunal can take into consideration the new developments, while making its decisions. For instance, one of the requirements of proving whether a relationship is genuine or not, is through an analysis of the level of commitment amongst the two parties. This level of commitment is judged socially, emotionally and financially. By getting pregnant, Lily managed to prove that she was socially committed in her marriage and relationship with Bob. Furthermore, through her pregnancy, she was carrying an Australian child, and this is defined in the citizenship act of 1948[5]. Under this act of parliament, a person qualifies as an Australian through birth or if one of his parents holds an Australian citizenship. The unborn child belonged to Bob; hence, he qualified to be referred to as an Australian citizen. This is a principle established in Plaintiff S441/2003[6]. This case law recognizes thecitizenship of Australian children born of one parent who is an Australian, and gives them the citizenship benefit. Furthermore, under the common law principles, a child who is born from unlawful non-citizen qualifies to hold the citizenship status of Australia. This is because the non-citizen is subject to the Australian laws. This is a principle established in Te vs. Dang (2002)[7]. Therefore, the pregnancy of Lily is an indication of being committed to Bob, and she is also carrying an Australian child; hence, the need of considering her application. Yes, Lily can get a refund of the fees she paid for her appeal. Bibliography Books, Articles and Journals Australian Immigration Law Practice - Continuing Professional Development (University of New South Wales, Faculty of Law, Centre for Continuing Legal Education, 2010) Billings, Peter, "Irregular Maritime Migration And The Pacific Solution Mark II: Back To The Future For Refugee Law And Policy In Australia?" (2013) 20 International Journal on Minority and Group Rights Judicial Review In Migration Matters (Dept. of Immigration and Multicultural Affairs, 2001) Nieuwenhuysen, J. P, John Higley and Stine Neerup, Nations Of Immigrants (Edward Elgar, 2009) Vrachnas, John, Migration And Refugee Law In Australia (Cambridge University Press, 2007) Legislations and Cases Migration Act 1958 (Commonwealth of Australia, 2004) Te vs Dang (2002) 26 The High Court (2002)