On 7 June 2024, the Minister for Immigration, Citizenship and Multicultural Affairs, Hon Andrew Giles signed a new revised Direction 110 (replacing Direction 99) to commence from 21 June 2024. This Direction outlines the primary and other considerations that must be taken into account in deciding whether or not to exercise their power to refuse or cancel a person’s visa.
This new Direction was issued in response to the growing pressure on the Minister regarding character cancellations in Australia. This is particularly in light of the NZYQ High Court case which ended indefinite detention in Australia, and resulted in numerous individuals being released from detention into the community (many of whom had been convicted of serious criminal offences).
Consequently, Direction 110 puts the “safety of the Australian Community” as the “highest priority”.We have a separate article here, which outlines what s 501 is, the “character test” and “substantial criminal record”, and the implications of having a visa refused or cancelled on character grounds. It also outlines how the Department becomes aware that a person may have a character issue.
What does the Delegate or the Minister consider in deciding whether or not to refuse or cancel a visa?
- Protection of the Australian community from criminal or other serious conduct (with which decision-makers should now keep in mind that the safety of the Australian community is the highest priority of the Australian Government);
- Whether the conduct engaged in constituted family violence;
- The strength, nature and duration of ties to Australia;
- The best interests of minor children in Australia;
- Expectations of the Australian community.
- Legal consequences of the refusal/cancellation decision;
- Extent of impediments if removed;
- Impact on Australian business interests.
What is the difference between the former Direction 99?
Direction 99 was itself brought in by Minister Giles on 3 March 2023 (replacing Direction 90) to provide a more compassionate approach to this decision-making. Importantly, Direction 99 made the “strength, nature and duration of ties to Australia” a primary consideration (previously an “other consideration”). This consideration often applies in favour of the visa applicant/holder, particularly those who have resided in Australia for a significant part of their lives (particularly since their formative years), and/or have family and other strong ties to Australia.
Direction 101 urges decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. It also walks back some of the changes brought in by Direction 99 – while still having regard to how long the non-citizen has resided in Australia, it removes a paragraph that gave “considerable weight…to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced”.
It also removes as an “other consideration” the impact on victims.
Conclusion
The Department has broad powers when it comes to character cancellations or refusals. Given the complexity of addressing character concerns and the potentially serious ramifications if not addressed properly, it’s often worth seeking professional advice about what to do.
Hannan Tew Lawyers has assisted numerous individuals with character issues of varying severity. We generally recommend that individuals book a consultation to discuss their circumstances here. Our fee of $385-$440 incl GST includes a one-hour discussion, and written advice following.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you would like assistance.
