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.

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

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.