The New Ministerial Direction for visa refusals and cancellations for people with adverse character or conduct.
Ministerial directions are written instructions given by the Minister for Immigration to a person or body with functions or powers under the Migration Act 1958 (Cth).
In delegating ministerial powers, the Minister can issue a range of directions to officials processing visa applications.
For example, when a minister delegates his power to assess visa applications to an employee of the Department of Home Affairs.
Recently, this has been amended by the Minister.
Ministerial directions cannot undermine the Migration Act or the Migration Regulations 1994 (Cth) and only relate to how decision-maker exercises their powers under the Act. A direction cannot create new laws but rather assists a decision-maker in taking into account relevant information when making decisions.
Ministerial directions, while limited in scope, are binding and must be followed when lawful.
The ministerial direction that has created controversy requires non-citizens who have lived in Australia for much or all of their lives to be holders of the subclass 444 visas.
If they or any other non-citizen in Australia receive a full-time custodial sentence for an offense against a law of the Commonwealth or State or Territory, they must ask the Minister to revoke their cancellation.
The New Direction No. 99 will take effect from 3 March 2023 and differs from the previous Direction No. 90 in that it adds a primary consideration: the strength, nature, and duration of ties to Australia.
This consideration adds several factors to consider, including:
- The decision to deport a non-citizen may have an impact on the non-citizen’s immediate family members in Australia, who may not be allowed to remain in Australia indefinitely.
- Giving more weight to the ties that Australian-born children have to their non-citizen parents,
- The strength, duration, and nature of your family or social ties to people who can live in Australia permanently
- The length of time a non-citizen has resided in Australia, and the level of their integration into the community are among the factors that can be taken into consideration when deciding on an appropriate sentence.
Those who did not spend their formative years in Australia are less likely to be given weight for their time spent here.
Some of the factors listed above are listed in the current direction, but they are not as important as primary considerations.
This additional primary consideration addresses the concerns of the example above and is consistent with recent media statements made by the prime Minister.
There are now five major considerations:
- To protect the Australian community from crime and other serious misconduct.
- whether the conduct at issue constituted family violence;
- the strength and nature of ties to Australia
- The best interests of children in Australia.
- The expectations of Australian society.
The new direction also considers Australia’s non-refoulement obligations, but these appear to be more of a formality.
The new direction will provide flexibility to address a sore point in Australia-New Zealand relations.
If you have any questions about the process of migrating to Australia, feel free to Australia Migration Services.
We would be happy to answer your questions and help you along the way.
