It Is Now Easier To Have Your Visa Cancelled Or Refused - Ministerial Direction No. 90
It is now easier for the Australian government to cancel or refuse a visa if they believe an immigrant is not meeting the requirements of their visa, or is a threat to national security. The Australian government recently made changes to the Migration Act 1958, which gives them broader powers to cancel or refuse visas. This means that it is more important than ever for immigrants to make sure they are meeting all the requirements of their visa, and staying on top of any changes that may occur. If you are unsure about what you need to do to maintain your visa status, Read this blog to understand your rights and responsibilities, and to know how to proceed.
Ministerial Direction No. 90 (‘Direction 90’) came into effect on 15 April 2021. It replaced the previous Ministerial Direction No. 79 (‘Direction 79’), which, in turn, had ousted Ministerial Direction No. 65 (‘Direction 65’). The changes that have occurred over the past 2.5 years highlight a trend towards broader application of the s.501 cancellation and refusal powers.
What is Ministerial Direction No. 90?
Ministerial Direction No. 90 sets out a list of factors that must be considered whenever a delegate is considering whether to exercise their discretion to refuse, cancel or revoke a visa cancellation decision in relation to ‘refusal or cancellation on character grounds’ (s.501 of the Migration Act 1958).
Having your visa cancelled on character grounds has some serious consequences, making the changes to Direction 90 of even greater concern. These consequences include being forbidden from applying for another visa while in Australia, the cancellation of a family member’s visa that is attached to yours or being excluded from applying for some visas permanently.
The direction imposes several mandatory factors that must be considered when considering whether to cancel or refuse a visa under character grounds:
Primary considerations:
Protection of the Australian community from criminal or other serious conduct. This involves consideration of the nature and seriousness of the conduct.
Whether the conduct engaged in constituted family violence
The best interests of minor child in Australia
Expectations of the Australian community
Other considerations:
International non-refoulement obligations
Extent of impediments if removed
Impact on victims
Links to the Australian community, including (i) strength, nature and duration of ties to Australia; and (ii) impact on Australian business interests.
The Past Situation – What is the difference between Direction 79 and 65?
Preceding Direction 90, Direction 79 introduced the idea that ‘crimes of a violent nature against women or children are viewed very seriously, ‘regardless of the sentence imposed’. This had been absent from Direction 65, which had, at most, implicitly dealt with it in the principle that ‘… violent and/or sexual crimes are viewed very seriously’.
We have written about the differences between Direction 65 and Direction 79 more in depth here.
The Current Situation – What is the difference between Direction 90 and 79?
Direction 90 has made it easier for people’s visas to be refused or cancelled. The major changes implemented by the new Direction 90 is summarised as follows:
Any acts of family violence now amount to ‘very serious’ conduct. This means that refusal/cancellation of visa extends to claims of family violence that are later withdrawn or are unsubstantiated. The decision-maker must examine all family violence conduct, not just criminal convictions.
Introduces new conduct that must be considered when making a s.501 decision including participation in a forced marriage, worker exploitation, human trafficking and people smuggling.
Decision-makers are now explicitly allowed to disregard objective evidence of a person’s likelihood of re-offending, such as a psychiatric report.
The impact on the victim of the perpetrator being allowed to remain in Australia and the impact of them being removed from Australia can be considered.
Cancellation, refusal, and revocation will be dealt with in the same set of considerations rather than being spread out over 3 parts. It is envisaged that this will make the directions easier to apply.
When cancelling a visa, it is irrelevant whether Australia has non-refoulement obligations towards the visa holder. In other words, it is irrelevant whether cancelling the visa would return a person to a country where they are likely to be harmed or killed.
How can Agape Henry Crux Help You?
If you want to find out more, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.