The Preamble to Ministerial Direction 90

Introduction

All non-citizens in Australia hold a visa that is in effect. If they do not, then they meet the definition of ‘unlawful non-citizen’. Visa-holders can lose their visa, and therefore lose their right to lawfully remain in Australia – they immediately become unlawful.

Non-citizens can lose their visa through both ‘general’ cancellation provisions and through ‘character’ cancellation provisions. When a visa is automatically cancelled because the non-citizen is not of good character and the mandatory visa cancellation provisions have been triggered, the non-citizen is permitted to seek revocation of that decision. Very tight timeframes apply.

After the non-citizen files documents to initiate the visa cancellation revocation request, evidence is submitted to demonstrate that either the former visa-holder meets the ‘character test’ (which isn’t possible if the mandatory visa cancellation processes have been enlivened) or alternatively that there is ‘another reason’ that would be of sufficient strength such that the visa should be reinstated. The decision-maker will consider the evidence provided by the non-citizen, and apply the factors specified in Ministerial Direction #90 (the ‘Direction’).

The Direction specifies both ‘Primary Considerations’ and ‘Other Considerations’. Evidence is assessed against each of the factors identified in those categories.

This post considers the Objectives and the Principles of the Direction. Those two sections in the Direction comprise the ‘Preamble’.

Understanding the Preamble is advantageous for non-citizens that are subject to the Direction. It will help them become aware of the context in which decisions about their future are going to be made.

 

Preamble – the Objectives of the Direction

The Preamble sets out the Objectives and the Principles of the Direction prior to providing the ‘Primary Considerations’ and the ‘Other Considerations’. We’ll begin by explaining the Objectives.

The Objectives are set out in four paragraphs.

First, the Migration Act 1958 (the ‘Act’) regulates the entry of non-citizens into Australia, and their stay after arrival. The Act regulates the coming into Australia and their presence here in the national interest. Pursuant to this objective, a non-citizen that does not pass the ‘character test’ may have their visa cancelled.

Second, visa-holders can have their visa cancelled if a decision-maker reasonably suspects that they do not pass the character test (and they are unable to satisfy them that they do). When the decision-maker’s discretion to reinstate a visa that has been cancelled has been enlivened, they must consider the specific circumstances of the case. This also relates to determining whether to grant a visa to a visa applicant, and to the discretionary power to cancel a non-citizen’s visa.

Third, mandatory visa cancellation will occur, pursuant to subsection 501(3A) of the Act, when particular circumstances exist. If the decision-maker is satisfied that the non-citizen does not pass the character test on the basis of the operation of paragraph 501(6)(a) or paragraph 501(6)(e) and they are serving a sentence of imprisonment on a full-time basis in a custodial institution, then the visa must be cancelled. Paragraph 501(6)(a) is met if the person is sentenced to death, sentenced to life, or sentenced to 12 months or more imprisonment. Paragraph 501(6)(e) is met if the non-citizen has committed sexually based offences against a child (regardless of the length of sentence).

Finally, the Direction guides decision-makers when performing the functions or when they are exercising their power to refuse a visa application on character grounds; to cancel a visa on character grounds, or to re-instating a visa that has been cancelled. The Act provides that decision-makers must comply with the Direction.

In summary, the Objectives provide that the Act makes provision for entry into (and the presence of) non-citizens in Australia. A non-citizen that does not pass the character test may have a visa application refused, have their visa cancelled, or they might (or might not) get their visa back after it has been cancelled.

Critically, the Objectives state that the Direction provides directions that must be followed by the decision-maker. That means that a non-citizen subject to the Direction must ensure that evidence and argument they provide align with the Direction. Evidence and argument that does not fit within the gambit of the Direction will not be relevant to the decision-making process.

 

Preamble – the Principles of the Direction

The ‘Principles’ follow the Objectives in the Preamble. The Principles are even more important for visa-holders to know about because they set out the framework within which decision-makers need to approach their task.

The factors that must be considered in making a decision are set out in Part 2 of the Direction. The Principles set out the context in which the Part 2 factors are to be determined. Five elements are identified.

First, Australia has the right as a sovereign nation to determine whether or not a non-citizen who is a character concern should be allowed to be here. It is a privilege that our government confers on non-citizens with the expectation that they are law-abiding; that they will respect important institutions such as our law enforcement framework; and that they are not going to cause harm if they are here. Few would disagree that the government should have this right.

Second, a non-citizen that has engaged in criminal or other serious conduct should expect that they will be denied the privilege of coming here. If they are already here, then they should expect to lose the privilege of being here.

Third, the Australian community supports the expectation that the Australian government should refuse entry to criminals (or cancel their visas if they are already here). This expectation applies to those individuals with serious character concerns. This Principle states that the Australian community will expect this to apply regardless of whether the non-citizen poses a measurable risk of causing physical harm.

Fourth, Australia has a low tolerance of criminal or serious conduct by visa applicants and temporary visa holders, and by those that have not been here so long. A higher level of tolerance can be afforded to non-citizens that have lived in the Australian community for most of their life, or that have been here from a very young age.

Finally, decision-makers have to weight the Primary Considerations and the Other Considerations that are relevant to the wrongdoer’s case. Sometimes the nature of their conduct, or the harm that would be caused if it were to be repeated, could be so serious that even very strong countervailing considerations might not be sufficient to justify reinstatement of their visa. This Principle specifically identifies family violence; being involved in forced marriages; committing crimes against women, children and other vulnerable members of the community; crimes against government representatives; human trafficking; and worker exploitation as especially relevant. Even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community and there are strong countervailing considerations, the non-citizen might not be permitted the privilege of remaining in Australia.

Collectively, the Principles set out a framework for decision-making. When assessing evidence provided by a non-citizen subject to the Direction, the departmental delegate needs to be cognisant of the reality that being here in Australia is a privilege. If the non-citizen engages in criminal or other serious conduct, then the privilege should be denied. The Australian community supports the government’s right to refuse entry or deny continued presence here if the non-citizen has acted waywardly. Tolerance for malfeasance increases depending upon how long a non-citizen has been here. There are some forms of conduct that are so heinous that even if there are very strong countervailing reasons, the wrongdoer should not be permitted to remain here.

 

Conclusion

The Preamble sets out the Objectives and the Principles of Ministerial Direction 90. Delegates must follow the Direction when determining whether to reinstate a visa that has been cancelled under character grounds; whether to refuse a visa application lodged by someone that has engaged in criminal or other serious conduct; and whether to cancel the visa held by a non-citizen.

Understanding the Objectives and Principles help non-citizens to comprehend the professional assistance and legal advice given to them by Immigration lawyers.

It can help non-citizens understand why submissions are written in a particular way.

 

We Can Help

The privilege of being in Australia has very high value, and once it is lost, it is usually impossible to regain.

The experienced Migration Lawyers at Potts Lawyers has been assisting non-citizens (and supporting family members that love them) for years. We have the experience and expertise to assist any non-citizen that is subject to the Direction.

If you or someone you know is at risk of losing the privilege of remaining in Australia, contact Craig DoRozario (Litigation & Migration Lawyer) or Tom Foran (Migration Lawyer) for a no-cost, no-obligation consultation.