RESPONSE TO NOICC UNDER SECTION 116: MIGUEL RIVERA
1. Introduction
In response to the Notice of Intention to Respond to Cancellation of student visa of Miguel Rivera the following submission is made. Students seeking academic guidance on complex legal topics can explore resources through best assignment help Australia. The application is directed towards persuading the Delegate that the visa of Miguel should not be suspended. It is with extenuating and unusual conditions that even though it is agreed that at one point he had offended condition 8105 in Violation of the law saying that he worked overtime and yet, this was contrary to what the law said he was to do in terms of the calculated hours, violating that same condition. The submission will outline the personal and academic history of the person (Miguel), the reason in the instance of the violation, how he was rehabilitated in that regard, and the discretionary factors that would lean towards not cancelling. It will finish by begging for the pleasure of his favour.
2. Background Facts
Miguel Rivera is a Mexican citizen aged 20 years and is leaving to pursue a Bachelor of Veterinary Science (Honours) in the James Cook University in Australia in 2023. Since ESD, he has demonstrated good performance in school and was committed to his school work. His youngest brother required urgent heart surgery in the year 2024 and the financial crisis of his family in Mexico took place out of the blue. The process was extremely costly and Miguel could not at the time sponsor his school fees on behalf of the family.
Miguel had to work full time during a few months to not interfere with his schooling. Despite having violated condition 8105 on the visa, it was not carried out without taking into consideration the law but with the intention of holding on to his studies and winning the investment of his family. Research has shown that in most cases, the holders of temporary visas are found in precarious conditions and circumstances where forced choices and determinations are the order of the day, thus, this can be defined as crossing visa journeys[1].
The financial crisis was compounded to deteriorate Miguel's mental illness. It is stated that the state of the migrants directly depends on the nature of social and economic stresses; the lack of support can lead to anxiety[2]. Miguel spoke to a doctor and ceased to take alcohol as well as visit his church in the neighbourhood and made positive steps toward becoming rehabilitated. His case also describes that social and economic safety nets of temporary migrants did not exist much in Australia and particularly in times of crisis they were pushed to the sidelines[3].
In the meantime Miguel has returned to his obedience to visa regulations, has recovered his educational direction and has been in a position to contribute to the community through searching with a wildlife sanctuary.
3. Issues
The first fact that the Delegate must consider is that the visa statement 8105 is violated by Miguel specifically because it does limit the pay rate of a student with ability to work during their study hours. True, it was Miguel who in fact for some four months in 2024 was full time. It is therefore permissible that this condition should be violated by technique.
Secondly, there should be an issue as to whether the discretion not to cancel the visa should apply even when there is breach. The considered legislation can be interpreted and the Content of the Legislature should take into the personal situation. The application of well-known case laws such as responding to a breach of a visa condition directed by consideration of fairness and proportionality has been seen in “Baljit Singh v Minister for Immigration and Border Protection [2017] FCAFC 132.” This means that the stress should not be based on the breach but cases that lead to the breach like whether he or she had a good record of compliance or not, and the true reason for the visa.
As per the stories that scholars follow, fairness is fundamental because it is the heart of listening to any visa decision[4]. Instead, judicial verdicts on how successful an immigration policy is expected to be include keeping it appealing to real students and allowing them to complete their studies and join the community again[5]. Both arguments advocate in the favour of discretion as it applies to the case of Miguel.
4. Relevant Law
Under “section 116(1)(b) of the Migration Act 1958 (Cth)”, a cancellation of a visa may be made by proving that the bearer has defaulted in one or more of the visa conditions. In the given case, condition 8105 applies since certified students with a student visa should not work more than 40 hours a week during the fortnight-in-session period of the course he/she is undertaking. The right of cancellation lies in discretion; the Delegate has to put in also the fact of breach and whether there are reasons to deprive the right of cancellation.
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The courts have favoured availability section 116. In “Khawar v Minister for Immigration and Multicultural Affairs [2002 HCA 14]”, the High Court instructed that when implementing the decision of the migration law, wider humanitarian and international obligations should be considered by the decision-makers. Similarly in Minister for Immigration and Border Protection v Eden [2016] FCA 28, the Federal Court noted that exercise of the power of cancellation must be performed with reasonable proportionate force.
The policy guideline has to be approached with an insight to the issues such as intent of the visa, degree of compliance on-the-whole, suffering that granting of injunction would cause, conditions of breach, and whether or not approval of injunction would be consistent with the international undertakings of Australia. The scholars argue that Australia has invented a new form of “crimmigration.” The immigration regulation has turned into a punitive tool[6]. Here the importance of the absence of unjust or too severe repercussions is demonstrated.
There are also studies conducted to prove the idea that deployment practices may be discriminative in particular cases connected to vulnerable groups[7]. Similarly, immigrants get more vulnerable each time a disaster occurs, such as the COVID-19, which means leniency and discretion would be essential in vital situations[8]. These factors give plausibility to the notion that the cancellation is not to be done in the case of Miguel because the breach was associated with extraordinary and humane circumstances.
5. Application of Law to Facts
It is not disputed that Miguel breached condition 8105 upon working in 2024 of four months in full time. It is not the question of whether the breach has been carried out but cancelling it is the mandatory outcome in the situation. The freedom allowed in section 116 of the Migration Act 1958 (Cth) to the Delegate implies that the legal principles, given the legal considerations of the facts behind the case of Miguel, have to create a balance between the facts of the case and the correct legal principles.
The first factor is the reason why the breach took place. Miguel did not take overtime to acquire suspicion of his visa. Instead he had to arrive at this decision because his youngest brother in Mexico is in urgent need of an operation that is extremely expensive and requires an emergency treatment. His family could not meet up the tuition fees and Miguel chose either to pander to his visa or abandon the degree. The court has made it very clear that a breach situation counts. The court said that discretion must be used in fair and disproportionate ways which did not require discretion that were unnecessary in the case of Minister for Immigration and Border Protection v Eden [2016] FCA 28. The humanistic factors may strongly be absent to cancellation in the case of Miguel.
The second rationale has to do with the unpleasantness that cancellation would cause. And in case his visa is cancelled Miguel will be denied a chance to complete his veterinary degree. His family has already invested heavily in his education and without the qualification he could not deliver on his part in future. International responsibilities should be considered as High court in “Khawar v Minister for Immigration and Multicultural Affairs (2002) HCA 14” emphasized that a decision should put into consideration international responsibilities. Revocation of the visa of Miguel will not only be hurtful but also relational to his family as well as to the advantage of study currently being offered to international students by Australia.
The third is rehabilitation. Since that time Miguel works not full time, has gone to official time, and has consulted medical help in his case of nervousness. As to church, to-day he comes there regularly and assists in a refuge of cats and cows. This displays actual reformation and self-development. Scholars indicate that discretional decisions are supposed to be taken fairly and proportion is to be considered[9].
The more general policy environment may also support discretion. Research points out that migrant learners find themselves in unfavorable situations and has to make compelled choices due to the lack of time[10]. Students had difficulties studying and faced financial difficulties, depending on the circumstances of the COVID-19 pandemic and being disrupted in studying[11]. These weaknesses show how decision-makers are required to act flexibly and not strictly penal. In addition, according to the researchers, the migration pattern after the introduction of migrants contributes to the rebuilding of Australian multi-culturalism and the re-enrichment of the local population[12]. The item of the positive contribution is described in the voluntary experience of fulfilling the roles of a wildlife shelter and outstanding academic skills.
Such aspects are to be balanced and therefore, the breach is to be approached within the framework of the context. May changed direction Miguel assisted his family because he was empathetic and has since become one of the ones not breaking the rules as a means of serving both his family as well as his university. Then such are precisely those cases where discretion is made to be applied, otherwise dissolution would be rude and otherwise unnecessary. Based on this, the Delegate is urged to exercise discretion towards Miguel and leave him to study.
6. Supporting Evidence
The fact that Miguel had a supporting source of evidence, which confirms that he was an honest student, rehabilitated, and an active member of the community, can be said to make him the traveler in the case. In his college transcripts, he is highly successful in his studies and this fact is important as the indicators of the immigration policy are not based on documents about compliance, but leave an imprint on the outcome of the process which includes completion of studies[13]. This is a testimony to the fact that Miguel is committed to his visa cause.
The monetary crisis which forced Miguel to work on a full time basis is discussed through the health records of his younger brother, who recently underwent surgery in Mexico. Moreover, his own files of his GP testify of his treatment when he was anxious. Studies show that the data provided by mental health can be critical in showing the impact of stress on migrant behaviour[14]. These documents will assist in proving that Miguel only acted in extraordinary circumstances and not because he does not respect the law.
He gets fixed and his personality is ethical which is proved by the fact that he has a local pastor and supervisors in his work place in the wildlife sanctuary. In deciding by discretion, it has also been affirmed by the court in cases such as “Baljit Singh v Minister for Immigration and Border Protection [2017] FCAFC 132”, positive behaviour and real reform must be put into consideration. By doing so, supporting letters make the weight of humanitarianism which in accordance with scholars is the determinant in the process of ethical visa decision-making[15].
7. Conclusion
Miguel acknowledges that the breach of the 8105 of the visa occurred. However, the case shows that the breach was characterized by desperate family conditions and not by the desire to use the student visa program inconsiderately. The cancellation would imply the forfeiture of years of sacrifice and more so rendering Miguel and the family to hard times in several folds in their lives besides denying him an education. He has returned full compliantly, and within treatment seeking and his contribution is now positive with volunteering and study. These are some of the grounds as to why it is written in respects that discretion be shown in his favour and that his student visa is not cancelled.
Reference List
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Rute Azeredo, ‘Visa Journeys and Permanent Temporariness: Navigating Welfare State Borders and Precarious Status in Australia’ (2025) Journal of Ethnic and Migration Studies 1.
- Laura Rivas, Hannah McNeill and Michael Randolph, ‘Deter, Detain, Deport and Demonise: Should Others Follow the Australian Crimmigration Model?’ (2025) Australian Journal of International Affairs 1.
- Anna K Boucher, ‘Assessing Immigration Policy Success in Australia’ (2025) Australian Journal of Public Administration (advance).
- Qian Guan, Joanna O’Donnell and James Raymer, ‘Changes in International Migration to and from Australia during the COVID-19 Pandemic’ (2024) International Migration Review 1.
- Alexander Elton, ‘Reviewing Review: Administrative Justice and the Immigration Assessment Authority’ (2024) 52(1) Federal Law Review 51.
- Julie Artus et al, ‘Australia’s Unethical Deportation Practice Discriminates against New Zealanders with Mental Illness: “Everybody Needs Good Neighbours!”’ (2023) 57(11) Australian & New Zealand Journal of Psychiatry 1410.
- Daniel L Rung, ‘COVID-19 and Policy-Induced Inequalities: Exploring How Social and Economic Exclusions Impact “Temporary” Migrant Men’s Health and Wellbeing in Australia’ (2023) 20(13) International Journal of Environmental Research and Public Health 6193.
- Claudia Tazreiter and Sarah Metcalfe, ‘New Vulnerabilities for Migrants and Refugees in State Responses to the Global Pandemic, COVID-19’ (2021) 10(9) Social Sciences 342.
- Fethi Mansouri, ‘The Future of Migration, Multiculturalism and Diversity in Australia’s Post-COVID-19 Social Recovery’ (2023) 7(1) Social Sciences & Humanities Open 100382.
- Anna Staneva and Anqi Chai, ‘Migrant Well-being in Australia: Does Locus of Control Matter?’ (2025) 56 Economics & Human Biology 101447.
- [1] Rute Azeredo, ‘Visa Journeys and Permanent Temporariness: Navigating Welfare State Borders and Precarious Status in Australia’ (2025) Journal of Ethnic and Migration Studies 1.
- [2] Anna Staneva and Anqi Chai, ‘Migrant Well-being in Australia: Does Locus of Control Matter?’ (2025) 56 Economics & Human Biology 101447.
- [3] Daniel L Rung, ‘COVID-19 and Policy-Induced Inequalities: Exploring How Social and Economic Exclusions Impact “Temporary” Migrant Men’s Health and Wellbeing in Australia’ (2023) 20(13) International Journal of Environmental Research and Public Health 6193.
- [4] Alexander Elton, ‘Reviewing Review: Administrative Justice and the Immigration Assessment Authority’ (2024) 52(1) Federal Law Review 51.
- [5] Anna K Boucher, ‘Assessing Immigration Policy Success in Australia’ (2025) Australian Journal of Public Administration (advance).
- [6] Laura Rivas, Hannah McNeill and Michael Randolph, ‘Deter, Detain, Deport and Demonise: Should Others Follow the Australian Crimmigration Model?’ (2025) Australian Journal of International Affairs 1.
- [7] Julie Artus et al, ‘Australia’s Unethical Deportation Practice Discriminates against New Zealanders with Mental Illness: “Everybody Needs Good Neighbours!”’ (2023) 57(11) Australian & New Zealand Journal of Psychiatry 1410.
- [8] Claudia Tazreiter and Sarah Metcalfe, ‘New Vulnerabilities for Migrants and Refugees in State Responses to the Global Pandemic, COVID-19’ (2021) 10(9) Social Sciences 342.
- [9] Alexander Elton, ‘Reviewing Review: Administrative Justice and the Immigration Assessment Authority’ (2024) 52(1) Federal Law Review 51.
- [10] Rute Azeredo, ‘Visa Journeys and Permanent Temporariness: Navigating Welfare State Borders and Precarious Status in Australia’ (2025) Journal of Ethnic and Migration Studies 1.
- [11] Qian Guan, Joanna O’Donnell and James Raymer, ‘Changes in International Migration to and from Australia during the COVID-19 Pandemic’ (2024) International Migration Review 1.
- [12] Fethi Mansouri, ‘The Future of Migration, Multiculturalism and Diversity in Australia’s Post-COVID-19 Social Recovery’ (2023) 7(1) Social Sciences & Humanities Open 100382.
- [13] Anna K Boucher, ‘Assessing Immigration Policy Success in Australia’ (2025) Australian Journal of Public Administration (advance).
- [14] Anna Staneva and Anqi Chai, ‘Migrant Well-being in Australia: Does Locus of Control Matter?’ (2025) 56 Economics & Human Biology 101447.
- [15] Julie Artus et al, ‘Australia’s Unethical Deportation Practice Discriminates against New Zealanders with Mental Illness: “Everybody Needs Good Neighbours!”’ (2023) 57(11) Australian & New Zealand Journal of Psychiatry 1410.
