LAWS1000 Code for Foundations of Law Case Study Sample

LAWS1000 Code for Foundations of Law Case Study

Ajay Singh was born in Fiji in January 1999 and arrived in Sydney Australia in February 2001, aged 2. Since this time, he has lived in Australia and has never travelled overseas. Currently, Ajay works as a mechanic and lives with his mother and father. He provides emotional, physical and financial support to his parents who are both suffering from several degenerative muscular conditions.

Ajay is a heavy drug user who started using amphetamines at age 15 to self-medicate for ADHD. 6 years ago, he started using methylamphetamines (ICE) daily. On 24 July 2024, Ajay was convicted of one sequence of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Additionally, Ajay was convicted of one sequence of intimidation with intent to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This was for threatening to punch his de facto partner during a domestic argument. Ajay was sentenced to 7 months of full-time imprisonment for each offence to be served concurrently. He is currently serving his sentence at Goulburn Correctional Centre.

Since being arrested, Ajay has sought medical treatment for his drug addiction, ADHD and anger management. Specifically, he has participated in weekly sessions with a psychiatrist and has been taking prescribed medication to treat his ADHD. He entered a plea of guilty at the earliest possible opportunity and has developed a plan for his accommodation and treatment post-release. This involves living with his mother and father in Sydney plus attending weekly sessions with his psychiatrist. At the time of sentence, Ajay was residing in Australia on a Child (Class AH) (subclass 101) visa.

Please answer the following questions:

1) Will Ajay’s visa be cancelled automatically under the Migration Act 1958 (Cth) (the Act) (5 marks)?

2) Assuming that Ajay’s visa will be automatically cancelled by a Ministerial delegate, is there any discretionary power available to the delegate to revoke the mandatory cancellation under the Act (5 marks)?

3) Identify and apply both the primary and other factors under Ministerial Direction 110 that will affect the exercise of the ministerial delegate’s discretion whether or not to revoke the mandatory visa cancellation (25 marks)?

Solution

1) Cancellation regarding Ajay’s visa under the Migration Act 1958

Under the Migration Act 1958 (Cth), Ajay Singha’s visa may be automatically cancelled under section 501(3A) if the below criteria are met. According to the provision, the Minister must cancel a visa if:

● The visa holder has been sentenced to 12 months or more of imprisonment, regardless of whether the sentence is cumulative or single .

● The visa holder breaches the character test, which requires that he or she have no substantial criminal record (section 501(6)). Subsection 501(7) defines “substantial criminal record” as a conviction for imprisonment for a term of twelve months or more .

In Ajay's case:

● He was convicted of two charges, which attracted a 7-month jail term, which he served simultaneously.

● The aggregate imprisonment time does not exceed 12 months, so he is below the mark of having a “substantial criminal record” under section 501(7).

Therefore, Ajay's visa will not be automatically cancelled under section 501(3A) because his present concurrency is 7 Months. Still, discretionary cancellation may be pursued under other provisions provided under the Act, including section 501(2), if the Minister comprises reasons for Ajay's lack of character under the character test, i.e., criminal conduct or threat to the community.

2) Discretionary Power to Revoke Mandatory Visa Cancellation

Under section 501(3A) of the Migration Act 1958, Ajay Singh's visa can be automatically cancelled if he fails the character test due to his criminal convictions.
However, discretionary power exists under section 501 CA(4) of the Act which allows the ministerial delegate to revoke mandatory cancellations. Conditions for revocation include two key points to revoke the cancellations. The delegates must determine a compelling reason to justify the revoking of visa cancellations. Ajay has been a long-term resident in Australia since the age of 2 and has established strong personal and community ties. Moreover, the delegate must assess the likelihood of Ajay addressing his behaviours and adhering to prescribed medication to provide evidence for his progress and ongoing treatment. Ministerial delegates must adhere to Ministerial Direction 110 by outlining primary and other relevant factors. Ajay's drug offense and intimidations are serious but his progress in rehabilitation can mitigate the risks. Also, Ajay's critical support for his parents weighs heavily in his favour. Additionally, Ajay's deportation can severely affect his parents and international obligations under international human rights law may support the case of Ajay if deportation violates the rights of his family.

3) Identification and Application of Primary and Secondary Factors for MBA Assignment Expert in Visa Cancellation Decisions

3.1. Primary Considerations

3.1.1 Protection of the Australian Community

Under “Ministerial Direction 110,” the safeguarding of “the protection of the Australian community” is a significant factor in whether to revoke a visa cancellation.
Nature and seriousness of conduct: Both drug possession and intimidation are unlawful, but the crime for which Ajay has been convicted is not the worst offence under Australian law. The intimidation is marked by the use of a verbal threat and is more inclined toward harm than actual physical aggression.

Risk of reoffending: The conjugal violence and a history of substance abuse can be viewed as pointing to some risk if considered in isolation . Still, he has become much more conscious of these tendencies in the recent past by trying to get help in a psychiatric setting, using medication for ADHD, and focusing on anger management. His actual guilty plea along with a post-release plan including family support and continuous treatment can reduce the reoffending likelihood.

Ajay’s past behaviour raises concern besides this, his rehabilitation efforts significantly mitigate risk towards the community. Thus, the revocation of his visa cancellation is supported.

3.1.2 Expectations of the Australian Community

In Ministerial Direction 110, the proactive roles that the expectations of the Australian community assume in the decision-making behind revoking a mandatory visa cancellation cannot be overlooked. The Australian community treating non-citizens to uphold the law and act as Australian citizens will not engage in a serious criminal offence.

Ajay’s convictions for drug possession and sentence for intimidation, in a domestic aspect, may mean that he should not be in Australia. However, Ajay’s initiatives for change such as seeking drug treatment, and overcoming ADHD, and anger issues all reflect the community's vision of second chance and redemption.
Since the man has achieved substantial rehabilitation and has long-term connections with Australia, overturning the visa cancellation might fulfil community 'reformative' demands over 'elimination'.

3.1.3 Best Interests of Minor Children in Australia

Under the Migration Act 1958, Ministerial Direction 110 aligns Australian obligations under Article 3(1) for the United Nations Convention on the Rights of the Child (CRC). Migration Act section 499(1) empowers ministers to issue direction and delegate considerations while deciding visa cancellations . Ministerial Direction 110 identifies the best interests of children as a primary consideration to assess the best interests of children. “Family Law Act 1975 section 60CC” outlines the determining factors for the best interests of children while focusing on the meaningful relationship with both parents and protection from both. Immigration decisions include Article 9(1) of CRC to emphasise the rights of children and maintain contact with both parents for their well-being . Australian immigration law and international obligations underscore the best interests while national principles for child safety highlight safeguarding children from adverse experiences.

3.1.4 Strength, nature, and Duration of Ties in Australia

“Migration Act 1958 section 499” empowers the minister to provide directions on weighted decisions by including visa holder’s ties to Australia . Ministerial Direction 110 outlines secondary conditions to revoke mandatory visa cancellation under section 501(3A). Australian citizenship recognises the significance of a person's connection to Australia by including their contributions to Australian society and their rights as long-term residents. The "Family Law Act of 1975" emphasises the significance of familial relationships to demonstrate deep-rooted connections . A visa holder in Australia contributes to the economy, community, and society to reinforce the argument for significant ties. The "Migration Regulation 1994" recognises the time spent in Australia to assess residency applications.

3.2. Other Considerations

In addition to the primary considerations for visa cancellation or revocation decisions, Australian law mandates that ministerial delegates also evaluate different secondary factors to ensure a holistic and just decision-making process . These factors include the visa holders' ties to Australia, the effect on the victims, international non-refoulement obligations, and the major extent of the impediments to the individual activity that may face if they are removed from Australia.

3.2.1: Strength, Nature, and Duration of Ties to Australia

The strength, duration, and nature of a visa holder's connections to Australia play a vital role in determining whether a visa cancellation or revocation aligns with the global public interest. “Under section 501CA (4) of the Migration Act 1958”, the main delegate must assess the individual's familial, cultural, and employment ties to Australia . The factors such as the core presence of immediate family members, long-term residency, or integration into Australian society through cultural and community participation are properly evaluated . Moreover, a person who has lived in Australia since childhood and has established a family career is likely to describe substantial ties. These ties are weighed against the seriousness of the individual's actions that led to visa cancellation.

3.2.2 Impact on Victims

The main ministerial delegate must consider the potential consequences for the victims if the visa cancellation is revoked. This factor seeks to uphold the rights and welfare of the victims as emphasized in the “Victims Rights and Support Act 2013” (NSW) and the related frameworks . If the victim may face trauma or distress due to the individual's factor for continued presence in Australia, this specific concern is to be taken into account . Moreover, where the individual's rehabilitation and efforts to reconcile with the victims are the most evident sources, these actions may mitigate concerns. The delegate's analysis must balance the needs and rights of the victims with diverse societal interests to ensure a fair and empathetic approach.

3.2.3 International Non-Refoulement Obligations

Australia's international commitments under treaties such as the 1951 Refugee Convention and the Convention against Torture (CAT) obligate the main government to protect individuals from the refoulement being returned to a country where they face a real risk of harm. The delegate must determine whether cancelling the visa would breach Australia's obligations as properly outlined in “section 36 of Migration Act 1958”. As an example, if the individuals face persecution or other inhumane, torture treatment in their country of origin, the visa cancellation may be reconsidered. This factor ensures Australia's compliance with the international legal responsibilities to maintain its domestic security and other immigration policies.

3.2.4 The extent of impediments if removed

Finally, the delegate assesses the severity of the challenges and individual factors that may arise if the person is deported from Australia. This factor includes considering the availability of healthcare, familial support, and employment opportunities in the individual's home country. Under “section 1976 of the Migration Act 1958”, the government acknowledges that certain removals may lead to undue hardship or deprivation . Moreover, a person with a chronic illness who lacks access to adequate medical care in their home country may face significant issues that weigh against removal. Moreover, individuals who lack social support systems in their home country that amu struggle to reintegrate and complicate their removal process.

3.3. Balancing Discretion: Application of Factors

In the context of the balancing discretion in the decision-making process for visa cancellation, the “Immigration and Citizenship Act (the Act)” provides a framework that the primary and secondary considerations must be weighed to ensure a fair and just outcome . The decision to revoke the mandatory factor for the visa cancellation requires a careful evaluation of each case analysis and it considers all effective factors as set out in the legislation .

3.3.3 Case-by-Case Analysis

The Act mainly mandates that visa cancellations must be handled with the potential factor of case-by-case analysis. This case analysis must ensure that the unique situations of each applicant are properly considered, in the act of “Section 501(3A)” indicates that the Minister has the power to revoke a visa cancellation, in the case of fair consideration of all the essential facts of the case . This case-by-case assessment must be weighed for the primary factors, such as the visa holder's criminal history or security risk, and the secondary factors must ensure the core contribution to Australian society.

In the field of the decision-making process, it is important to thoroughly and take effective consideration into the applicant’s history, and the major risk of harm posed to the community. Moreover, secondary factors, such as rehabilitation efforts, family circumstances, and other measuring situations must be also considered. The individual’s ties to the global country, and includes the length of their specific stay, their family situation, and the potential impact of visa cancellation on their well-being. This detailed analysis must ensure that all aspects of the applicant's situation are properly considered in light of the legislation.

3.3.4 Weighing Competing Interests

In this case, the delegate must balance the competing interests involved. The primary considerations, such as national security and the protection of the Australian community . The Act highlights the importance of balancing these competing interests for the direct decision-makers process to consider the gravity of the offense but also the potential approach for rehabilitation and the diverse impact of visa cancellation on the individual factor. It is important that the delegate evaluates how these competing interests’ factors influence the overall fairness of the decision, which provides a significant weight, and the secondary considerations also play a vital role in making a fair decision . Moreover, the applicant's criminal history may be the primary consideration, the potential factor for rehabilitation, and the length of time since the offense should also be taken into account.

The impact on the individual and their family risk should be carefully weighed against the need for security and community protection, to ensure that the decision reflects a holistic understanding of the entire case. The effective principles of fairness, and global justice, should guide this weighing of interests, and ensure that the decision is both reasonable and lawful.