What is Ministerial Direction 79?

Good question! And if you are living in Australia and have been sentenced to a term of imprisonment of 12 months or more, you really need to cast your eyes over or get your hands on a copy of the Ministerial Direction 79. Interestingly, if you do a general sweep of the internet (ahhh, Google!), you will have difficulty finding a copy of the Direction. This is bizarre given that the effects of the Ministerial Direction 79 are significant and widespread (check out the table of relevant stats below!).

In any case, we’ve made a copy of the Ministerial Direction 79 available here.

TABLE 1: VISA DECISIONS UNDER SECTION 501

Source: Department of Home Affairs,Submission to Joint Standing Committee on Migration, Inquiry into review processes associated with visa cancellations made on criminal grounds, [Submission no. 29], 11 May 2018, p. 4.

Essentially, when a delegate is considering cancelling or refusing a visa under the character provisions outlined at s501 of the Migration Act, that decision maker must consider Ministerial Direction No. 79 which sets out binding considerations for decision-makers in exercising this discretion. Interestingly, the Minister for Immigration is not bound by these considerations.

Direction No. 79 commenced on 28 February 2019 and replaced the previous Direction No. 65. While the new Direction is not significantly different to the former one, it now provides that in considering the nature and seriousness of the non-citizen’s criminal offending and other serious conduct, decision-makers must have regard to (amongst other matters) ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’.

The Direction emphasises the principle of protecting the Australian community, and requires decision-makers to give primary consideration to:

• the nature and seriousness of the non-citizen’s conduct to date

• the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

• whether the cancellation or refusal is in the best interests of any minor children in Australia affected by the decision

• expectations of the Australian community.

Secondary considerations that must be taken into account, when relevant, include:

• whether international non-refoulement obligations arise;

• the strength, nature and duration of the person’s ties to Australia;

• the impact of the cancellation or refusal on Australian business interests and/or on members of the Australian community (such as victims of the non-citizen’s criminal behaviour); and

• the extent of any impediments the non-citizen may face if removed.

The considerations are complex and different levels of weight will be attributed to each of the considerations, depending on the individual’s circumstances. It’s a delicate balancing act, and because of that we say that It is important that you seek legal advice so that your best case is put before the decision-maker.

The verdict is in: soft (skills) is best!

Visa cancellations and visa refusals under the Migration Act 1958 are no soft topic.

soft skills

noun

1. personal attributes that enable someone to interact effectively and harmoniously with other people.

If there’s a set of skills most lawyers lack, it’s soft skills.

That is why, soft skills are what distinguish Samuta McComber Lawyers from the rest. Our lawyers’ soft skills complement their hard-earned legal expertise and analytical intelligence, so that the truth of our clients stories can be better told to the decision makers who ultimately hold our clients’ lives in their hands.

Needless to say, when you are facing a possible visa cancellation under s501 of the Migration Act 1958 or have received a non-revocation outcome by a delegate of the Minister of Home Affairs (and you intend on appealing that decision to the Administrative Appeals Tribunal ( AAT ) ), it is in your best interests to engage lawyers whose expertise is complemented by excellent soft skills. The following are the top 3 reasons why:

1. the character-related provisions (s116 and s501) of the Migration Act 1958 is a complex area of law - not all lawyers have sound knowledge or experience in this niche area of immigration law;

2. the ramifications for a visa refusal or visa cancellation under s501 is permanent exclusion from returning to Australia - literally, a life long ban, with no exceptions whatsoever; and

3. when appearing at the AAT in relation to a s501 visa cancellation, the lawyers for the Minister of Home Affairs will play an active role in the proceedings (they will be at the final hearing to make submissions, examine and cross-examine the Applicant and the evidence relied on). The Minister for Home Affairs is of course represented by the Australian Government Solicitor or a top-tier law firm (currently Sparke Helmore Lawyers or Clayton Utz Lawyers).

Soft skills are our point of difference.

The following list are our top 7 sought after soft skills for our legal team:

#1: A genuine desire to help other people

#2: High personal integrity

#3: Humility and sensitivity

#4: Simplicity

#5: Empathetic listeners

#6: Confidence and persistence

#7: Discipline, dependability, and loyalty

Lets be real, representing clients whose visas have been refused or cancelled under s116 and s501 of the Migration Act 1958 is a tough gig! Professionally, the legislation is complex, yet specific, with strict deadlines and specific considerations. Personally, the nature of the work is highly emotive and demanding, with daily exposure to clients’ family units being torn apart by the threat of (or actual) deportation and individuals being removed from the only home (country) they’ve ever known.

The reality of the legal consequences for our clients and their loved ones drive our personal commitment to provide a level of representation:

• that is driven by a passion to selflessly assist others, instead of being focussed on the money;

• that demonstrates a deep commitment to honesty, loyalty, candor, transparency, and respect for others;

• where we put ourselves in others’ shoes, seeing our clients’ situations, attitudes, and needs through their eyes;

• that strives to be down-to-earth, communicating in simple language and avoid using “legalese”, recognising that our clients have unique styles, interests, and needs, having come from different walks of life;

• that is confident and unshakable, refined only by respect and efficiency.

In our view, soft skills allows us to make better submissions on behalf of our clients, and we understand the knowledge gained through our deeper relationship with our client adds to our responsibility as their advocate as we observe and interpret our client’s story to the decision maker, whether it be the delegate of the Minister for Home Affairs or Member of the AAT .

After all, every one has a story to tell: their lives being more than the sum of their offences (character).