The New Ministerial Direction No. 110 and its Problematic Predecessor No. 99
Immigration Minister Andrew Giles recently issued a new Ministerial Direction to replace Direction No. 99. Ministerial Direction No. 110 comes into effect on 21 June 2024, and prioritises the protection of the Australian community from criminal and other serious behaviour by non-citizens.
This new ministerial direction was initiated by the Labour party in an effort to remedy public outcry surrounding Direction No. 99, which set headlines ringing with fervent condemnation.
Background History
Ministerial Direction No. 99 replaced Ministerial Direction No. 90 in January 2023 and added an additional primary consideration to list of factors that the independent Administrative Appeals Tribunal (AAT) should give consideration to on when ruling on visa refusals, cancellations or revocations. The new consideration directed the tribunal to deliberate on “the strength, nature and duration of ties to Australia” and give those factors considerable weight.
Direction No. 90 previously had only four primary considerations, those being: (1) the protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community.
Effects of Direction No. 99
As noted above, direction No. 99 introduced a fifth primary consideration titled Strength, Nature, and Duration of Ties to Australia.
This new factor acknowledged that individuals with significant and long-standing ties to Australia, especially those who grew up in Australia during their formative years, such as familial relationships and community involvement, should have these connections weighed heavily in their favour during visa decision-making processes. The intention was to provide a more humane and compassionate approach to individuals who had integrated into Australian society and for whom Australia was home.
The addition of this consideration aimed to create a balance between protecting the community and recognising the personal circumstances of non-citizens
The Direction was widely criticised for the following reasons:
Reversal of Visa Cancellations
More than 30 individuals whose visas were cancelled due to family violence and other serious offenses were able to have these cancellations overturned by the AAT. These individuals successfully argued that their strong ties to Australia and long-term residence outweighed their criminal conduct, leading to their visa reinstatements.
Public Outcry and Safety Concerns
The public and various community groups expressed outrage over the perceived leniency towards serious offenders. Critics argued that Direction No. 99 placed too much emphasis on the personal ties of offenders to Australia at the expense of community safety. There were widespread concerns that allowing such individuals to remain in Australia undermined the integrity of the immigration system and posed risks to public safety.
Perceived Inconsistencies in AAT Decisions
The AAT’s decisions under Direction No. 99 appeared inconsistent with the Government’s intent to protect the community from serious offenders. Many decisions seemed to prioritise the offenders' personal circumstances over the broader community's expectations and safety concerns, leading to questions about the effectiveness and fairness of the tribunal’s rulings.
Examples of Reoffending under Direction 99
Public outrage emerged after it became publicised that a number of individuals whose visa cancellations being overturned under Direction No. 99 reoffended after being allowed to stay in Australia. For instance:
A man convicted of multiple domestic violence offenses had his visa cancellation reversed due to his long-term residence and family ties in Australia. He was later arrested for another domestic violence incident, causing further distress to his victims and raising public alarm;
Another individual with a history of serious criminal behaviour, including drug trafficking, successfully argued his strong community ties to have his visa cancellation overturned. He was subsequently involved in another drug-related offense, highlighting the risks posed by not prioritising community safety; and
A third case involved an individual with a record of sexual offenses. His visa cancellation was reversed based on his long-standing residence and family connections in Australia. However, he was later charged with another sexual assault, underscoring the dangers of allowing serious offenders to remain in the community.
How Direction No. 110 Seeks to Remedy No. 99
Andrew Giles suggested in a press conference on 7 June 2024 that “the AAT has made a number of decisions independently of Government that do not reflect the Government’s intent or meet community expectations” and that the implementation of Direction No. 110 will strengthen Australia’s cancellation system “so that it better reflects community expectations”. The representative went on to say that “the new revised direction will make crystal clear that the Australian Government expects community protection to be given greater weight when it comes to visa decisions.”
Direction No. 110 addresses the issues arising from Direction No. 99 through several key changes:
Reaffirming Community Safety as a Priority: The new direction places a stronger emphasis on the protection of the Australian community from criminal and other serious conduct. This ensures that the safety and security of the community are the paramount considerations in visa decisions;
Limiting the Impact of Personal Ties: While personal ties to Australia will still be considered, Direction No. 110 ensures that these ties do not outweigh the need to protect the community from individuals who have engaged in serious criminal behaviour. This rebalancing aims to prevent serious offenders from using their Australian connections to circumvent visa cancellations;
Emphasising the Impact on Victims: Direction No. 110 introduces a higher level of consideration for the impact on victims and their families. This change is intended to ensure that the experiences and safety of victims are given greater weight in decision-making processes;
Clearer Guidance for Decision Makers: The new direction provides clearer guidance to decision-makers on the Government’s expectations. This includes a more explicit directive that community protection should be given greater weight than personal circumstances when assessing visa cancellations and refusals; and
Enhanced Accountability: By clarifying the Government’s intent and expectations, Direction No. 110 aims to enhance the accountability of the AAT and other decision-making bodies. This is intended to reduce the likelihood of decisions that are perceived as inconsistent with community standards and government policy.
Whether Direction No. 110 is clearer in its intention to make community safety a paramount consideration will be determined once the direction takes effect. For now, Andrew Giles states that Direction No. 110 “puts in place a higher level of consideration on the impact of victims and their families.” The representative adds that the direction will clearly communicate to decision-makers the expectations that the Australian Government and the Australian community have about non-citizens.
Key Takeaway
The criteria for deciding visa refusals, cancellations, and revocations are being updated. It's crucial to understand how these changes might affect your immigration status. If you believe that your situation could be impacted by the new Ministerial Direction, seeking professional advice to navigate these adjustments is highly recommended.
Contact Us
At TooRoo Migration Lawyers, our team of experienced solicitors specializes in Australian immigration law. We can assist you from the early stages of your application to the Department of Home Affairs for revocation of visa cancellations, through to any review applications lodged with the AAT. Contact us to today discuss any concerns or issues you may have regarding your visa or immigration status.
Disclaimer
This blog provides general information and is not intended as legal advice specific to your circumstances. Please feel free to seek our professional legal advice if you have any particular questions, concerns, and/or queries.
