AUSTRALIAN IMMIGRATION NEWS
The New Ministerial Direction No. 79 (‘Direction 79) came into force on 28 February 2019 and it revokes Ministerial Direction No. 65. Now that Direction 79 is in force, character issues relating to visa refusals and cancellations must be considered against the new requirements contained in the said Direction.
What does the New Direction No. 79 say and do?
One’s visa may be cancelled or refused under s501 of the Act if the Minister or the delegates of the Minister reasonably suspect that the person does not meet the character test and that the person fails to demonstrate that he or she is of ‘good character’.
Decision makers must take into account the mandatory considerations prescribed in Direction 79, when deciding on visa refusal or cancellation under s501 and revocation of mandatory cancellation of a visa under s501CA of the Migration Act 1968 (Cth) (‘the Act’).
These considerations, both primary and other, include:
1. Protection of the Australian community from criminal or other serious conduct (primary consideration);
2. The best interests of minor children in Australia (primary consideration);
3. Expectations of the Australian Community (primary consideration);
4. International non-refoulement obligations (other consideration);
5. The strength, nature and duration of ties to Australia (other consideration);
6. Impact on Australian business interests (other consideration);
7. Impact on victims (other consideration);
8. Extent of impediments if removed (other consideration).
The Key difference between Direction 79 and Direction 65
The new Direction 79 separates crimes of a violent nature against women and children into a new subclause, regardless of the sentence imposed. In other words, this new subclause does not require a person to even receive custodial sentence, simply that the person has been convicted of a crime of a violent nature against a woman or a child.
This greatly lowers the bar for visa cancellation and refusal as any crime against women and children that is considered violent, will result in visa cancellation or refusal, or failure to revoke a cancellation.
Another important thing to note is the primary considerations in relation to revocation requests (Part C of Direction 79) has deleted the criteria regarding ‘the principle that the Australian community’s tolerance for risk of future harm becomes lower as the seriousness of the potential harm increases.’ However, that principle has not been deleted in Part A and Part B of Direction 79 regarding cancellation and refusals.
If your visa has been cancelled or refused on the basis of these aspects, you may be entitled to apply for a revocation or a review of the decision, but generally tight timeframes apply. Therefore, we recommend that you contact us immediately to discuss your options.
Alternatively, if you wish to apply for a visa to avail entry to Australia or remain in Australia, but you think that you might not be able to pass the character test (principles under Direction 79), please also feel free to contact us.
Telephone: +61 3 9614 7111