The new kid on the block; same kinda’ bully: MINISTERIAL DIRECTION 90

What is Ministerial Direction 90?

Migration Act 1958 (Cth), s 501 Visa cancellations and refusals

This question is important if you are a non-citizen living in Australia and:

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

2.       your visa has been mandatorily cancelled under section 501(3A) of the Migration Act; or

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

From the 15th of April 2021, Direction 90 is replacing Direction 79 (see our blog post dealing with Direction 79) in dealing with these matters.

Like Direction 79, you can’t find Direction 90 through a Google search, so we have provided a copy of Direction 90 here.

Key Changes under Direction 90

Direction 90 has introduced some major changes.

Major Change #1

There is now one set of primary and secondary considerations that must be considered by a decision-maker (except for a Minister) for s 501 cancellations, mandatory cancellations and refusals. Previously, these different matters each had separate sets of considerations. See Table 1 below for a summary of the differences in what needs to be considered.

TABLE 1: PRIMARY AND SECONDARY CONSIDERATIONS IN DIRECTION 79 VERSUS DIRECTION 90

As with Direction 79, the primary and secondary considerations in Direction 90 are given different weight, depending on the non-citizens circumstances.

Major Change #2 – A new Primary Consideration: Family Violence

The second major change is Direction 90 contains an increased focus on non-citizens who have committed forced marriage or family violence. Both of these terms are defined specifically in Direction 90, but the definition of family violence reflects the definition of family violence under the Family Law Act 1975 (Cth).

With respect to family violence, Direction 90 now considers (as a Primary Consideration) whether a non-citizen has committed family violence (regardless of whether they have been convicted for an offence or not). This means Direction 90 contains four primary considerations, whereas Direction 79 only contained three (see Table 1 above). Please note that family violence has a broad definition and Direction 90 is not limited to the consideration of criminal convictions for family violence!

Forced marriage is dealt with under the primary consideration dealing with the Protection of the Australian Community.

Major Change #3 – Independent evidence of risk

The third key change is that for certain serious offences (for example, family violence), the Principles in Paragraph 5.2 of Direction 90 expressly allows decision makers to disregard objective evidence of the non-citizen’s likelihood of reoffending (for example, forensic psychology reports). While decision-makers technically had the flexibility to do this in the “weighing exercise” under Direction 79, Direction 90 states that:

‘…The expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.’ Paragraph 5.2(3) of Direction 90.

‘…the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community’: paragraph 5.2(5) of Direction 90.

There are various textual changes throughout Direction 90 that we haven’t discussed (for example, changes to the International non-refoulement consideration and the Impact on victims consideration), but the three changes we have discussed above are three major differences between Direction 79 and Direction 90.

What do these changes mean for you?

Overall, Direction 90 is easier to apply than Direction 79 because there is only one set of primary and secondary decision-makers to consider.

Direction 90 appears to be harsher in its considerations, especially as non-citizens were already at a statistical disadvantage (see Table 2 below for figures about revocation decisions for mandatory visa cancellations under section 501(3A) of the Migration Act).

While, on the face of it the changes found in Direction 90 appear to be more stringent and focused on particular types of offending (eg. family violence), we anticipate that there will be a transition period where the Tribunals and Courts interpret the distinct changes and nuances introduced by the new Direction 90, and we are hopeful that its interpretation does not make it materially harder to receive a positive decision for the non-citizen facing visa refusal or cancellation under s501 of the Migration Act 1958.

TABLE 2: REVOCATION DECISIONS UNDER SECTION 501CA

Source: Department of Home Affairs website – Statistics on Visa Cancellation accessed 12 April 2021.

Direction 90 will be a challenge for non-citizens subject to decisions under section 501(1), section 501(2) or section 501(3A) of the Migration Act. It remains a complex and delicate balancing matter heavily dependent on the non-citizen’s circumstances, so it is important that you seek legal advice in order to put the best case forward to the decision-maker.

 For more information, or feel free to contact us for a chat with an understanding, experienced, and compassionate lawyer.

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.

Back to basics series: Visa Cancellation under s501(3A) of the Migration Act

Blogged by Jennifer Samuta
and Rachel Tomassen

Picture this. You’ve just received a letter from the Department of Home Affairs, saying that your visa has been cancelled. If that seems nightmarish and something you cannot even imagine, here’s an illustration:

Obviously, you’re scared..stressed….confused – who knows what will happen next? Can you fight this? Is there any hope? Will you be deported? How long do you have? What is the process? Your mind, no doubt, will be a whirlwind of questions and your heart a sea of emotions!

If you’ve been given a Notice of visa cancellation under s 501(3A) of the Migration Act 1958, what does it mean?

It means that your visa has been subject to mandatory cancellation– your visa has been automatically cancelled. The Minister for Immigration can, and must, cancel your visa under s 501(3A) of the Migration Act when you meet boththe following criteria:

1.     You fail to pass the “character test”. This means that you either:

a.     Have a “substantial criminal record”; or

b.     Have been convicted of child sex offences; and

2.     You are currently incarcerated on a full-time basis.

You can have a “substantial criminal record” if you have been sentenced to a term of imprisonment of 12 months or more. This might also include if you have been sentenced to multiple terms of imprisonment which add up to 12 months.

Then, as soon as you go to jail, you are incarcerated on a full-time basis. Your visa is automatically cancelled under s 501(3A) and there is no certainty on which day of your sentence- you must just know and be prepared to receive that letter (see pic above).

So your visa has been cancelled under s 501(3A). Now what?

There is hope - something can be done!

If your visa has been cancelled under s 501(3A), it is possible to apply to the Department and ask them to revoke the mandatory cancellation of your visa. This is called a request for revocation and is a process which basically asks the Minister to reconsider the cancellation (note: only certain considerations can be made - see our post on Ministerial Direction 79 here). If you are successful, your visa will be reinstated.

But how do you make a request for revocation?

STEP 1: Act quickly.

You only have 28 days to send the Department your request for revocation. If you have no idea what you are doing, the sooner you can get a lawyer the better. 

If the Department receives your request afterthe 28-day time period, they will not consider your request for revocation.

There is no fee to lodge this request for revocation.

You can send the request to the Department in three ways:

-      Via email at 501Revocations@homeaffairs.gov.au;

-      Via fax at 03 9235 3626; or

-      Via post at the address below.

National Character Consideration Centre
Department of Home Affairs
GPO Box 2241
Melbourne, VIC 3001

(Please take into account how long your mail may take to get to the Department when you are thinking about when to send the request!)

STEP 2: Fill out the Revocation Request Form.

You can find this form enclosed with the notice of visa cancellation that was sent to you by the Department. Fill it out and include it in the package you send to the Department.

STEP 3: Fill out the Personal Circumstances Form.

This form is also enclosed with the notice of visa cancellation sent to you by the Department. Fill it out as much as you can, even if you intend to get a lawyer to help you. Your lawyer is going to need as much information as they can get!

When you are requesting a revocation of your mandatory visa cancellation, you are essentially trying to tell the Department:

“I know that I have failed the character test, but there is another good reason why I should not be deported!”

What is another good reason? Well, it’s more like many good reasons. These good reasons are outlined in Ministerial Direction 79, which is a list of factors the Department has to take into account when making their decision. A great overview of Direction 79 can be found here.

Often, we have found that our clients’ best arguments that they have a good reason to stay have included:

-      Having minor children who rely upon them for support, and whose relationship with you would be damaged if you were deported, or their lives would be significantly disrupted if they were permanently separated from you;

-      Feeling genuinely remorseful about your conduct, having undertaken a lot of serious rehabilitation efforts and courses, and having a low chance of re-offending - find yourself a qualified psychologist who can assess you and provide a written report about your risk; 

-      If you have lived in Australia for a long time;

-      If it would be very difficult for you to return to your country of citizenship; and

-      If you have made other positive contributions to your family and your community.

These are only some of the reasons, but this should give you a taste of what kind of information you need to tell the Department, or your lawyer when they are helping you draft a Statement to include in your request for revocation.

Essentially, you’re trying to convince the Department that you should still remain in Australia because you will be responsible and make a positive contribution to Australian society. Your very best reasons why you should stay in Australia need to go in your request for revocation.

Often, you will need a lot of information to evidence this claim. Try to get as much information as you can from your friends and family, as well as letters of support. This might take a lot of time, so you’ll need to act quickly.

Understand the Consequences

If you thought the information above was scary enough, the consequences of a visa cancellation is even scarier. As your visa has been cancelled, you no longer hold a substantive visa, and you are considered an unlawful non-citizen. If the visa cancellation decision is not revoked before you are released from prison, you will be detained in immigration detention following your release.    

There are four major consequences of a visa cancellation under s 501(3A), being:

1.    you are prohibited from applying for other visas while you remain in Australia (there are exceptions for applications for protection and bridging visas in some circumstances);

2.    any other visa applications made by you are deemed to be refused and all other visas held by you are deemed to be cancelled (however, if the visa cancellation decision is revoked, any visa applications or cancelled visas will be reinstated);

3.    you will be permanently excluded from entering Australia; and

4.    a record will be attached to your immigration file, which may cause difficulties with any international travel in the future (as many countries will not admit people who have been removed from another country).

Take home message: Visa cancellation under s 501(3A) of the Migration Act isn’t the end of the road. Submit your request for revocation to the Department within 28 days, and give yourself the best chance you can to see the light at the end of the tunnel. And most importantly, know that it is possible to have a visa cancellation decision revoked. The graph below represents the number of finalised revocation requests from 1 July 2018 to 30 June  2019. There is hope!

A ‘Revoked’ decision results in a visa being reinstated, whereas a ‘Not Revoked’ outcome upholds the cancellation decision. Source: Department of Home Affairs website.

For more information, feel free to contact us for a chat with one of our understanding, experienced and compassionate lawyers.

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.

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.

Frequently Asked Questions - Visa Cancellation under the Migration Act 1958

Given that our firm fields a number of enquiries on a daily basis in relation to visa cancellations under the Migration Act 1958, it made complete sense that we should blog about FAQ’s! I mean, how have we not done so sooner?! Note: this blog will be updated regularly with additional FAQ’s so be sure to subscribe if you want to keep updated.

How long do I have to apply for review or appeal after receiving a Notice of Cancellation?

If your visa has been automatically cancelled under s 501(3A), you must request that the Minister for Home Affairs revoke (set aside) that cancellation within 28 days of receiving the notice. If the Department does not receive your request for revocation within 28 days there is nothingyou can do to set aside the decision. 

If your visa has been cancelled unders 116(1)(e)you must apply to the Administrative Appeals Tribunal for review of the decision (and pay at least half of the AAT’s usual filing fee - $893.50) within seven working days of the date you are taken to have received the Notice of Cancellation (the date you are taken to have received the Notice may be earlier or later than when you actually received the notice). The AAT has no power to extend the time for lodging an application for review, even if it really, really wants to (i.e. if you moved to Australia when you were 10 days old and your adoptive parents are Australian citizens). 

Does it cost money to request revocation or apply for review?

If your visa has been automatically cancelled under s 501(3A)you do not have to pay any fee in order to request revocation of an automatic cancellation.

If your visa has been cancelled under s 116(1)(e)you must pay the Administrative Appeals Tribunal’s filing fee, which is usually $1,787.00. If you apply for a fee reduction on financial hardship grounds the fee may be reduced by 50 per cent to $893.50. If you apply for financial hardship you must pay at least $893.50 to the Tribunal within the 7 working day period you have to apply for review or the Tribunal will not be accept your application for review. 

Will I ever be able to return to Australia?

If your visa is automatically cancelled under s 501(3A)and that cancellation is not revoked you will be permanently excluded from Australia. This is because you are unable to apply for almost any other visa while you remain in Australia and, once you are removed, it is a criterion of every visa you could apply for outside of Australia that you have not previously had a visa cancelled under s 501. 

If your visa is cancelled under s 116(1)(e) and that decision is not overturned by the AATyou will be unable to apply for any temporary visa for 3 years after your cancellation. If you are removed from Australia after your visa is cancelled (which is likely), you will be unable to apply for most other visas until 12 months after your removal. If you are a New Zealand citizen and are removed after your visa is cancelled, you will never be eligible for a Special Category (subclass 444) visa again, even if the AAT sets aside the cancellation decision after you are removed. That means you will have to apply for and be granted another visa before you are allowed to re-enter Australia.

What are the chances of getting my visa back? Is it even worth trying?

Your prospects of successfully requesting revocation or applying for review will depend on your specific circumstances. However, don’t let media reports fool you, people do get their visas back!

Of all people who request revocation of an automatic visa cancellation under s 501(3A), about half get their visa back. You’ll never hear about this because these decisions aren’t published publicly. 

For those cancelled under s 116(1)(e), we have had multiple clients who have had their visas reinstated by the AAT. You can read reviews from such clients on our Testimonials page here , Google Business or Facebook. 

Note: 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 ongoing saga of visa cancellations under section 116(1)(e) and section 501(3A)

Blogged by our Jennifer Samuta

Just like a soap opera, the situation with visa cancellations under Australia’s Migration Act 1958, has gone from bad to worse and if the flurry of enquiries to our offices are anything to go by, it has left the country’s non-citizens in a state of panic and pervasive uncertainty.

“Is it true that your visa can be cancelled on the basis of charges which remain outstanding in the courts?”

“I am a Subclass 444 Special Category visa holder and I have past criminal convictions but I haven't received a letter notifying me that my visa is being considered for cancellation. Am I a sitting duck? Should I apply for permanent residency or citizenship now?”

“With the new proposed laws, am I at risk of visa refusal or visa cancellation?”

“My visa was cancelled under section 116 on pending charges, which I’ve now beaten, but I did not appeal the cancellation to the AAT. What can I do now?”

So many questions; not enough time (in at least one blog, anyway)..

However, let’s attack the first question:

“Is it true that your visa can be cancelled on the basis of charges which remain outstanding in the courts?

Let’s use Michael* as an example. Michael is currently being held on remand at a Remand Centre while he waits for his outstanding criminal charges to be dealt with.

Unfortunately, while he awaits for his outstanding charges to be dealt with, there is very little certainty about the actions that the Department of Home Affairs may take in relation to his visa. What is certain is that there are a number of different processes that may be undertaken by the Department.

These processes may be commenced either prior to Michael’s outstanding charges being dealt with by the Court or afterwards.

*Names are completely fictitious and used for illustrative purposes only. However, whilst the legislative scenarios seem unbelievable, we can confirm they are reality.

Possible Scenario #A: Cancellation under Section 116 of the Migration Act 1958

While Michael is on remand (or, if he is granted bail, while on bail) the Department may notify him of their intention to consider cancelling his visa under s 116(1)(e) of the Migration Act. Section 116(1)(e) of the Migration Act gives the Minister the power to cancel a visa held by a non-citizen where the Minister is satisfied that the non-citizen’s ongoing presence in Australia is, or might be, a risk to the health, safety or good order of the Australian community (or the health and safety of a person in the Australian community). Yes, it all sounds hellishly discretionary and neither here nor there, BUT what we do know is that the Minister has previously been satisfied that a risk might exist where non-citizens have been charged (but not convicted of) a single offence involving violence (e.g. common assault, assault occasioning bodily harm, contravention of domestic violence order) and even where the non-citizen has no previous criminal convictions. (Yes, you read that correctly! Go on, read it again then.)

If the Minister (or their delegate) is satisfied that Michael’s ongoing presence in Australia does present a risk, then his visa can be cancelled. Whether or not the decision-maker decides to cancel Michael’s visa will depend on whether that risk is outweighed by factors weighing against cancellation (e.g. the strength and duration of his connections to Australia, the bests interests of any minor children in Australia, the circumstances leading to Michael’s alleged offending).

If the Department intends to consider cancelling Michael’s visa prior to his outstanding criminal matters being dealt with, then they are likely to send him a letter notifying him of their intention to consider cancelling his visa. Michael will be taken to have received this letter seven working days after the date of the letter and will be required to provide a response to the Department within five working days after the day he is taken to receive the letter. The decision maker will then determine whether to cancel his visa. This process can take some months before a decision is made.

Michael could also be notified by the Department of an intention to consider cancelling his visa under s 116(1)(e) after his outstanding criminal law matters are dealt with. Usually this only occurs in circumstances where Michael is sentenced by the Court and is ordered to be immediately released from correction detention (i.e. given a ‘time served’ sentence). In this case the Department could verbally notify Michael of their intention to consider cancelling his visa immediately after he is processed out of the corrective services system (he would be handed over to officers of the Australian Border Force). After being notified of their intention to consider cancelling his visa Michael would be given 20 minutes to consider the reasons why his visa should not be cancelled and then be invited to give those reasons at an interview. The ABF officers will then notify Michael of whether his visa has been cancelled or not.

If Michael’s visa is cancelled under s 116 he will become an unlawful non-citizen and be liable to be taken into immigration detention. If Michael’s visa is cancelled under s 116 he will have a right of review to the Administrative Appeals Tribunal. This review must be lodged in the Tribunal within 7 working days of the day he is taken to have been notified of the cancellation decision. Further, at least half of the AAT’s Migration and Refugee Division filing fee (full fee: $1,787; reduced fee: $893.50) must be paid to the Tribunal within those 7 working days. The Tribunal has no power to extend the time for lodging an application for review in any circumstances.

Possible Scenario #B: Cancellation under Section 501(3A) of the Migration Act 1958

If Michael’s visa is not cancelled prior to, or immediately after, his outstanding criminal law matters are dealt with, then he may still be subject to cancellation under a different section of the Migration Act 1958. Most significantly, if Michael is (or ever has been) sentenced to a single term of imprisonment of 12 months or more and is required to serve time in prison after sentencing (if he is sentenced), then his visa will be automatically cancelled under s 501(3A) of the Migration Act. If this is the case Michael will be notified of the mandatory cancellation of his visa and will have 28 days to request that the Minister revoke (set aside) the cancellation and reinstate Michael’s visa. The factors that the decision-maker would consider in deciding whether to set aside the cancellation are similar to the matters relevant to deciding whether to cancel a visa under s 116(1)(e).

Possible Scenario #C…X, Y, Z

There are other visa cancellation processes that Michael may be subject to if and when he is released into the community, however those processes are less common and are usually less time-sensitive than the above processes. We blogged about one of these possible provisions last month. You can read about the nightmare provision here.

Conclusion: So the question you all ask: how can one prepare for the unknown and range of possibilities?

Given the short timeframes imposed for responding to visa cancellation processes commenced by the Department, we offer to assist persons such as Michael and his family to prepare responses to any visa cancellation process that may be commenced ahead of time. Usually our approach as a firm is to provide initial prospects of the likelihood that a person on remand or bail might have their visa cancelled. This would involve reviewing their current charges, any prior history and their risk of recidivism. However, more often than not, the initial enquiry is made, we offer our advice around the possible scenarios (this blog essentially!) and are engaged once/if the visa is cancelled.

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