Ministerial Direction No. 110 was signed on 7 June 2024 and will come into force on 21 June 2024. It replaces Ministerial Direction No. 99, which was issued in January 2023.
The introduction of Direction 110 is described as a 'knee-jerk' response to criticism of Direction 99, which was allegedly used by approximately 30 non-citizens to escape deportation. In relation to these decisions by the Administrative Appeals Tribunal (AAT), the Hon Andrew Giles MP, the Minister for Immigration, Citizenship and Multicultural Affairs, noted that they 'do not reflect the Government's intent or meet community expectations'. Between 27 May 2024 and 7 June 2024, he cancelled 40 visas 'in the national interest'.
Ministerial Direction No. 110
Direction 110 states that protection of the Australian community from criminal or other serious conduct is 'generally to be given greater weight than other primary considerations'. This is paired with the new language in Direction 110 that states 'the safety of the Australian community is the highest priority of the Australian government'.
Other primary considerations, which are included in both Directions, include the following:
- Whether the conduct engaged in constituted family violence
- The strength, nature and duration of a person's ties to Australia
- The best interests of children (minors) in Australia
- The expectations of the Australian community
The main differences between Direction 99 and Direction 110 are found in the Principles section. While Direction 99 notes that Australia 'will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life', Direction 110 changes the language to be 'may afford', which provides wider discretion.
In the media release for Direction 110, the Hon Andrew Giles MP announced that a purpose of Direction 110 is to elevate 'the impact on victims of family violence and their families into one of the existing primary considerations, reflecting the Government's zero-tolerance approach to family and domestic violence'. This is reflected in the language in Direction 110 that 'family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa'.
In considering the nature and seriousness of the person's criminal offence or conduct, Direction 110 includes a new section for the types of crimes or conduct that are serious, noting 'the impact of the offending on any victims of offending or other conduct and their family'.
Regarding Direction 99
In Direction 99, it's noted that 'in considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely'. Direction 110 removes the mentions of children who are Australian citizens, permanent residents or have a right to stay in Australia indefinitely. Instead, the more general 'strength, nature and duration of any other ties... to the Australian community' is used.
Concerns have been raised about the introduction of Direction 110, particularly in relation to New Zealand citizens, refugees, and asylum seekers.
Direction 99 was introduced in January 2023 after the New Zealand government lobbied over the deportation of Kiwi nationals with criminal convictions, despite having spent most of their lives in Australia. Direction 110 has reversed the rules made in accordance with Direction 99, which risks deporting Kiwi nationals 'with little or no connection to New Zealand, whose formative experiences were nearly all in Australia'.
Direction 99, which emphasised primary consideration to be given to a person's connections to Australia before refusing or cancelling their visa, is now replaced by an emphasis on strengthening 'the consideration of community safety'. There are concerns that this shift will be disproportionate and fail to give fair consideration of family impact and time spent in Australia. In particular, the impact on refugees is cited, as they may be deported to potential persecution and harm, separated from their family and support system, and isolated from communities where they have spent long periods of time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.