A new immigration Ministerial Direction (known as MI110) was signed on 7 June 2024. This direction includes amendments to the previous Ministerial Direction 99 (MI99) and is aimed at tightening the parameters for decision-makers regarding what factors should be given weight when considering Australian visa refusals or cancellations (as well as revoking mandatory cancellations under Section 501CA of the Migration Act).
Ministerial Direction 110 came into effect on 21 June 2024.
Government says previous Ministerial Direction 99 required clarification and strengthening
Ministerial Direction 99 (introduced in 2023) required those making decisions about visa refusals and cancellations to consider a person's ties to Australia (for example, strength of family ties, duration in Australia, nature of the applicant) a primary consideration.
Decision makers were to also consider other factors, including safety of the Australian community, family violence and criminal history, however, ties to Australia was a primary consideration.
The Government said the Ministerial Direction 99 had been misinterpreted when it was revealed that the Administrative Appeals Tribunal (AAT) had reinstated the visas of people convicted of serious crimes, prioritising their "ties to Australia".
What led to the urgent immigration Ministerial Direction 110?
In November 2023, the High Court of Australia decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor, resulted in the release of a number of people from immigration detention.
Operation AEGIS, a joint AFP & Australian Border Force operation, was established to ensure the safety of the Australian public after the release of the immigration detainees into the community on bridging visas (albeit with strict conditions including ankle monitors and curfews etc) due to the High Court decision.
In a media release on 3 June 2024, the Hon Andrew Giles MP (Minister for Immigration, Citizenship and Multicultural Affairs), announced that in the national interest, he had cancelled 30 visas of non-citizens who had "serious criminal histories".
He blamed the effectiveness of the previous MI99 in terms of its intended application which had allowed decisions by the AAT to reinstate visas for individuals with significant and serious criminal histories. He forecast that a new Ministerial Direction would be in place by the end of the week (early June 2024) and has been true to his word.
What does Ministerial Direction 110 require of immigration decision-makers?
The new MI110 makes it abundantly clear that in all decision making around refusing or cancelling a visa under s501 of the Migration Act, or to revoke the mandatory cancellation of a visa under s501CA, "The safety of the Australian Community is the highest priority of the Australian Government".
It reinforces the view that some conduct, such as family violence, even in situations where the non-citizen is not likely to pose a risk of any physical harm to the Australian community, is so serious that there may be no arguments or considerations which would justify a decision not to cancel or refuse a visa.
Under the new direction, less weight is given to the length of time that the individual has been living in Australia and the family ties that they may have with Australian citizens and permanent residents who have a right to remain here indefinitely.
A search of the decisions published by the AAT will reveal just how many refusal and cancellation decisions are reviewed by them each year. This new direction means the number of refusals and cancellations that the Department of Home Affairs will decide moving forward is likely to increase, putting more pressure on the already backlogged independent review body and its newly constituted replacement, the Administrative Review Tribunal (ART) due to commence prior to the end of 2024.
Need help from a migration agent?
If you find yourself in the difficult situation of receiving a visa refusal or cancellation based on your criminal history or character in general, it is imperative that you seek assistance from a qualified migration agent or migration lawyer.
We can ensure that you understand your options, any time limits that apply to your case and represent you in all communication with the Department of Home Affairs or the AAT including substantive submission for consideration.
Do not delay. Contact us for assistance immediately.
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