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Listen up Section 501s: the changes in Ministerial Direction 99

Ministerial Direction 99 commences on 3 March 2023. It replaces Ministerial Direction 90 and contains some major changes for anyone being considered for, or subjected to, visa cancellation, visa refusal, or mandatory visa cancellation under s 501 of the Migration Act 1958 (Cth).

This blog aims to summarise the key differences between Ministerial Direction 90 and Ministerial Direction 99.

Please see our blog “Finally! A Change in the Section 501 Space: A new Ministerial Direction”  if you want to check whether Ministerial Direction 99 impacts you. Ministerial Direction 90 continues to apply until 3 March 2023.

 

Major Change #1 – A change in the Primary Considerations versus Other Considerations.

Ministerial Direction 99 has changed up the balance of Primary Considerations compared to Other Considerations. See Table 1 below for a summary of the changes to the Primary Considerations and Other Considerations.

TABLE 1: PRIMARY AND SECONDARY CONSIDERATIONS IN DIRECTION 90 VERSUS DIRECTION 90

TABLE 1: PRIMARY AND SECONDARY CONSIDERATIONS IN DIRECTION 90 VERSUS DIRECTION 90

The key change is that “Strength, nature and duration of ties to Australia” has been promoted from an Other Consideration to a Primary Consideration. This consideration will often weigh in favour of a visa holder or visa applicant and Primary Considerations are generally afforded more weight than Other Considerations, so this change may have a significant impact on many cases.

Overall, this change makes Ministerial Direction 99 a more balanced Direction than Ministerial Direction 90. This is because in Ministerial Direction 99, Primary Considerations 2 and 3 can weigh in favour of a visa holder or visa applicant where relevant. It can be expected that Primary Considerations 1, 2 and 4 will generally weigh against a visa holder or visa applicant where relevant.

In contrast, Ministerial Direction 90 was more clearly stacked against a visa holder or a visa applicant because the only Primary Consideration that could weigh in favour of a visa holder or visa applicant was Primary Consideration 3, which only applies where the best interests of minor children in Australia are concerned.

Major Change #2 – More consideration for those with substantial ties to Australia

Unlike Ministerial Direction 90, Ministerial Direction 99 places greater emphasis on those who have lived in Australia during and since their formative years (e.g. someone who came to Australia at a young age and has lived here since then).

This is reflected in subparagraph 5.2(5) of the “Principles” section in Ministerial Direction 9, which states 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, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly during their formative years. [emphasis added]

It is also reflected in the new Primary Consideration 3 in Ministerial Direction 99. Primary Consideration 3 in Ministerial Direction 99 now emphasises that “considerable” weight should be allocated where the person has ordinarily lived in Australia “during and since their formative years, regardless of when their offending commenced and the level of that offending.” [emphasis added]. This was not explicitly stated under Ministerial Direction 90.

Despite this, visa holders and visa applicants should be warned that Ministerial Direction 99 does not displace the principle that some offending or strong conduct is of such a serious nature that any risk of it being repeated is unacceptable, even if that risk is not measurable and in the face of strong countervailing considerations.

 

Major Change #3 – A new definition in relation to family violence

The actual definition of “family violence” in Ministerial Direction 99 remains the same as it was in Ministerial Direction 90. It reflects the definition of “family violence” under Family Law Act 1975 (Cth).

However, there is a new definition included in Ministerial Direction 99 for “member of the person’s family” for the purposes of defining family violence.

Ministerial Direction 99 says:

Member of the person’s family for the purposes of the definition of the definition of family violence includes a person who has, or has had, an intimate personal relationship with the relevant person.

We do not yet know how the Minister, Department of Home Affairs, the Administrative Appeals Tribunal, and the Federal Court of Australia will interpret “intimate personal relationship.” Will they interpret it broadly to include things such as current or former close friends or a person involved with a casual sexual encounter? Will they limit its scope to current or former spousal or de facto relationships? These questions will not be resolved until we see cases in the Administrative Appeals Tribunal and the Federal Court of Australia.

What do these changes mean for you?

We are hopeful that Ministerial Direction 99 will give visa holders and visa applicants a better chance of fighting their visa refusals, visa cancellations, and mandatory visa cancellations under s 501 of the Migration Act 1958 (Cth) than they had under Ministerial Direction 90.

The harshness of Ministerial Direction 90 has been reflected in the number of revocation versus non-revocation outcomes in relation to s 501(3A) mandatory visa cancellations between 1 July 2019 and 30 June 2020 (see Table 2) compared to 1 January 2021 to 31 December 2021 (Table 3).

TABLE 2 (BELOW): REVOCATION DECISIONS UNDER SECTION 501CA OF THE MIGRATION ACT 1958 (CTH)

TABLE 2 (BELOW): REVOCATION DECISIONS UNDER SECTION 501CA OF THE MIGRATION ACT 1958 (CTH)

Source: Department of Home Affairs website as at 11 April 2021– Statistics on Visa Cancellation accessed via the Wayback machine on 31 January 2023.

TABLE 3 (BELOW): REVOCATION DECISIONS UNDER SECTION 501CA OF THE MIGRATION ACT 1958 (CTH)

Source: Department of Home Affairs website – Statistics on Visa Cancellation accessed 31 January 2023.

In Ministerial Direction 99, the Australian Government appears to be acknowledging that visa holders or visa applicants who have lived in Australia for and since their formative years, or who have other strong ties to Australia, should be given proper weight in deciding visa cancellations or refusals under s 501 of the Migration Act 1958 (Cth).

Despite this hope, visa refusals and cancellations under s 501 of the Migration Act 1958 (Cth) remain a delicate balancing matter that are heavily reliant on the circumstances of each particular case. The consequences of a visa refusal or cancellation under s 501 of the Migration Act 1958 (Cth) are permanent and life-changing if not successfully appealed.

In our experience, self-represented visa holders or visa applicants may inadvertently lodge evidence or make admissions that are against their best interests and may harm their prospects of success. For these reasons, it is important that you seek legal advice in order to put the best case forward to the decision-maker.

 Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have.

Finally! A change in the section 501 space: a new Ministerial Direction

What is Ministerial Direction 99?

This question is important if:

  1. your visa has been mandatorily cancelled under s 501(3A) of the Migration Act 1958;

  2. your visa is being considered for cancellation, or has been cancelled, under section 501(2) of the Migration Act 1958;

  3. your visa application is being considered for refusal, or has been refused, under section 501(1) of the Migration Act 1958;

  4. your visa or visa application are being considered for cancellation or refusal by the Minister under s 501(3)(a) or (b) of the Migration Act 1958; or

  5. if you are awaiting a decision on any of the above matters from the Minister, or Department of Home Affairs, or for a decision on an appeal to Administrative Appeals Tribunal and you do not receive a decision on your matter before 3 March 2023.

Ministerial Direction 99 contains the list factors and considerations that the decision-maker, whether that be the Minister, Administrative Appeals Tribunal, will consider when determining whether to refuse, cancel, or revoke a mandatory cancellation under s 501 of the Migration Act 1958.

These factors are currently listed in Ministerial Direction 90, which commenced on 15 April 2021.

From the 3rd of March 2023 Ministerial Direction 99 commences. It replaces Ministerial Direction No.90.

You can find a copy of Ministerial Direction 99 here. You can find an explanation of the main differences between Ministerial Direction 99 and Ministerial Direction 90 in our blog post called “Listen up section 501s: Changes in Ministerial Direction 99” linked here.

 

Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have.

The Pearson decision and aggregate sentencing

Facts:

Ms Pearson’s visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act) on 17 July 2019 on the basis that had been sentenced to a sentence of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Act and she was serving a sentence of imprisonment.

The relevant sentence engaging s 501(7)(c) of the Act was an aggregate term of imprisonment of 4 years and 3 months in respect of 10 offences [44]. This aggregate sentence was made under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Ms Pearson’s notice of mandatory cancellations stated that her representations had to be received by the Department of Home Affairs within 28 days of receiving the notice, and that she was taken to have received the notice within 7 days of it being posted to her: [5].

Ms Pearson requested revocation of the mandatory visa cancellation on the 27th day after she was handed the notice. Her representatives then made four further representations after the 28-day period had expired, each of which were considered by the Department: [6]-[9].

On 24 June 2020 Ms Pearson was informed that the Minister’s delegate decided not to revoke the cancellation decision. Ms Pearson appealed the non-revocation decision to the Administrative Appeals Tribunal but was unsuccessful. [11]-[12].

 

Legal Issues

There were three grounds for legal error raised in this case, arising from two critical questions: [1]-[2].

The first question was whether the 501(3A) notice was affected by a legal error. Grounds one and two arose from this question.

The first ground as that the notice failed to properly crystallize the 28-day period by incorrectly stating the representations had to be received within the 28-day period. This was the error that impacted the notice in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. [18]-[19].

The second ground was whether this failure to crystallize the period deprived Ms Pearson of properly respond to the notice [34].

The second question (and third ground on appeal) was “whether, for the purposes of s 501 of the Migration Act, an aggregate sentence of imprisonment, under a provision such as s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is a single sentence to a term of imprisonment or a sentence to “2 or more” terms of imprisonment, or is neither.” This was the third ground of appeal.

 

Outcome:

The unanimous decision Application succeeded on the third ground. The Court decided “For the reasons that follow, the first question raised in the SFAOA should be answered “No”, and the second that it [an aggregate term of imprisonment under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A] is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment.” [3]

 

The Court’s findings on the first ground:

The Court rejected the first ground for want of materiality.

The Court reasoned that the case precedent on a failure to crystallize the 28-day period, because the case precedent establishes that the representations must just be made within the 28-day period, not received [19]-[24]

However, the Court noted that Ms Pearson’s case was like that in Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423, and therefore distinguishable from EFX17. The reason for this is that Ms Pearson’s representations were received within the 28-day period, and not after the 28-day period as was the case in EFX17.

The Court said that the question was whether “the failure to crystallize the period within which representations are to be despatched invalidates the invitation for all purposes.” [26]

The Court applied Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [27] in saying that this question incorporates “a threshold of materiality,” such that not every failure to observe the condition would deny legal force to the decision. [26]-[28].

As such, the Court reason that this requirement that an error be material would not generally be met where complying with that requirement could have made no difference to the decision that was made [32]-[33].

The Court found that in this case, even though the Minister failed to properly crystallize the 28-day period in which Ms Pearson had to seek revocation of the mandatory visa cancellation, this failure was no material. This is because Ms Pearson sought revocation on the 27th day, which was within the 28-day period. [34]

The Court stated that had her representations been made after the 28-day period, then this first ground would have been successful. [35]

 

The Court’s findings on the second ground:

The Court also rejected the second ground for want of materiality.

With respect to the second ground the Court noted that not only did Ms Pearson respond within the 28-day period, but she also sent four additional representations via her legal representatives, all of which were considered by the Department [25], [34].

 

The Court’s finding on the third ground:

The Court accepted the third ground. In doing so, they relevant noted that Ms Pearson’s visa had been cancelled because she had a substantial criminal record for the purposes of s 501(6)(a) of the Act as a result of her aggregate sentence of 4 years and 3 months imprisonment for 10 offences: [40].

At [41] the Court noted this question is critical to a cancellation under s 501(3A) of the Act because the terms of s 501(3A) of the Act require the minister to reasonable suspect that a person fails the character test because they have a substantial criminal record as defined in ss 501(7)(a), (b), (c) or (e) of the Act:

Substantial criminal record

(7)  For the purposes of the character test, a person has a substantial criminal record if:

(a)  the person has been sentenced to death; or

(b)  the person has been sentenced to imprisonment for life; or

(c)  the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)  the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)  the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

                      (f)  the person has:

(i)  been found by a court to not be fit to plead, in relation to an offence; and

(ii)  the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)  as a result, the person has been detained in a facility or institution.

 The Court said is it clear from s 501 of the Act that mandatory cancellation is only reserved for the most serious offences, and that fact contextualizes the questions of whether or not an aggregate sentence of 12 months or more satisfies s 501(7)(c) of the Act: [42].

The Minister tried to argue that s 23(b) of the Acts Interpretation Act 1901 (Cth) compels the singular use of the term “sentence” in s 501(7)(c) of the Act to include the plural. The Court rejected this and stated that it is clear that Parliament made a “conscious choice about the use of singular and plural” in s 501(6)-(7) of the Act: [43].

 The Court found that “In the context of s 501(7), it is apparent that Parliament has made a distinct choice about the nature of the sentence for an offence that was to be used as an objective proxy for a “substantial criminal record” that will lead to mandatory cancellation – that being an offence punishable by death, life imprisonment, or a term of 12 months.”[43]

The Court then examined the exact nature of an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44(2C), 53A, 54A(2), and 54B. At [44] The Court applied the made the following relevant observations on those sections from JM v R [2014] NSWCCA 297; 246 A Crim R 528 [39]:

  1. Aggregate sentences resolve an issue in Pearce v The Queen [1998] HCA 57 and remove the need for sometimes laborious cascading sentences where the principle of totality requires the accumulation of sentences;

  2. “When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order”

  3. The indicative sentences enable the court to individually assess the criminality involved in each offence;

  4. An aggregate sentence cannot be used to minimize offending conduct.

The Court also noted that indicative sentences cannot be appealed and are not operative. Only the aggregate sentence is the operative sentence [45].

This resulted in the Court concluding that “The aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given. Further, in the case where a sentencing judge fails to provide indicative sentences for individual offences, an aggregate sentence of imprisonment is not invalidated (s 53A(5)). In such circumstances, there could be no objective means by which the Minister could reach any reasonable suspicion, on the basis of s 501(7)(c), as to whether a person’s visa ought to be mandatorily cancelled.” [45].

The Court noted that it would have been straightforward for Parliament to word the section to include aggregate sentences of 12 months or more, and noted that an aggregate sentence can be arrived at for convictions for serious of lesser offences which on their own might not render a person liable to cancellation [47].

As such, the Court held that Ms Pearson’s aggregate sentence of 4 years and 3 months did not render her liable to cancellation under s 501(3A) of the Act [48].

The Court concluded that the aggregate sentence satisfies neither s 501(7)(c) or 501(7)(d) of the Act: [3].

 

Applicability of this case prior to 17 February 2023:

Prior to 17 February 2023, whether this decision applied depended on the sentencing law of each jurisdiction, in particular, whether aggregate sentences are allowed. This case heavily relied on the sentencing law in NSW, where aggregate sentences exist.

The Sentencing Council of Victoria describes an aggregate sentence as “A single sentence (for example, a term of imprisonment or a fine amount) imposed for two or more charges within a case, without the individual sentence for each separate charge being specified...” (Source: https://www.sentencingcouncil.vic.gov.au/sacstat/user_information/glossary.html).

It does not extend to cumulative or concurrent sentences, as they both involve multiple, separate sentences of imprisonment.

 

Applicability of this case after 17 February 2023 - Migration Amendment (Aggregate Sentences) Act 2023 (Cth).

On 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Migration Amendment Act) amended the Migration Act. The Migration Amendment Act has had a significant impact for those who have received aggregate sentences. We have directly seen the devastating impact of the Migration Amendment Act on people and their loved ones, including the confusion it has created.

The effect of the Migration Amendment Act was to change the Migration Act so that the Pearson exception no longer applies. It did this by changing the relevant provisions of the Migration Act to make it clear that aggregate sentences can be relied upon for the purposes of considering whether someone has a substantial criminal record as defined in s 501(7) of the Migration Act.

It also retrospectively re-validated all cancellations and refusals that were invalidated by the Pearson decision. This is a very significant legal outcome, as generally the rule of law dictates that laws should not operate retrospectively. That is, the normal rule of law-making is that laws should only apply to future circumstances, not past circumstances. The Migration Amendment Act strays from this rule by undoing the past invalidity of visa cancellations and refusals impacted by Pearson.

We strongly recommend that anyone who has had their visa cancellation or removal impacted by Pearson get legal advice on their specific circumstances.  Generally, most people have been thrown back to their legal position pre-Pearson. This means that their visa cancellation or refusal proceedings will continue as they were before Pearson intervened, as if Pearson never happened. Nonetheless, this may not be the case where someone has discontinued or withdrawn proceedings after Pearson came into effect and until the Migration Amendment Act.

If you or a loved one have been impacted by Pearson, please feel free to give us a call on 07 3394 8489.

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