A Visa Application Refusal and Visa Cancellation Matters

Changed decision-making requirements: Ministerial Direction #90

To help protect the Australian community, the Australian government refuses visa applications by non-citizens that have engaged in serious conduct. A visa holder could have their visa cancelled because they have engaged in criminal activity.

If a visa application is refused or a visa cancelled, there can be huge ramifications for the individual involved. The non-citizen’s Australian family members too can experience repercussions. Children living in Australia are severely impacted if their parent or caregiver’s visa is cancelled, and they are subsequently removed from Australia.

The decision to refuse a visa application or to cancel a visa on character grounds is not made lightly.

Decision-makers are employed by the Department of Home Affairs to assess the circumstances of a non-citizen to determine whether they should be permitted to remain in the Australian community. When a non-citizen has engaged in serious conduct, the decision-maker (often called the “delegate”) will need to determine whether a visa application should be refused; whether a visa currently held should be cancelled; and whether a visa that has already been cancelled through automatic cancellations provisions should be reinstated. It is a complex process that involves weighing factors both for and against the wrongdoer.

To guide them in their deliberation process, the delegate must precisely follow instructions set out in the relevant Ministerial Direction. Relevant to this topic is Ministerial Direction #90, replacing Ministerial Direction #79 and having effect from 15 April 2021.

The purpose of this article is to consider what has changed. Those subject to a visa application refusal, discretionary visa cancellation, or revocation of a mandatory cancellation based on character grounds are impacted.

Those that have already made their response to a Natural Justice letter (such as a Notice of Intention to Consider Cancellation) or that have made a Revocation Request of a visa cancellation also need to know about these changes. New, additional factors apply. Those impacted by this change should consider making a supplementary submission and provide evidence to address the additional new considerations.

What has not changed?

Ministerial Direction #79 and Ministerial Direction #90 have many identical aspects. A lot has not changed. For example, the Application of the Character Test found in the Annex has not changed.

There have been some minor changes to the Preamble. Considered side-by-side, those amendments are mostly cosmetic.

Both versions still have Primary Considerations and Other Considerations. Generally, Primary Considerations should have more weight than Other Considerations, but it is entirely possible that something relevant to an Other Consideration could have enough weight to tip the scales in favour of the non-citizen’s interests. These principles have not changed.

It would be convenient to think of Ministerial Direction #90 as having everything important from Ministerial Direction #79, but some important new factors have been added.

What has changed?

The structure of the document has changed a lot.

Ministerial Direction #79 had:

• Part A (which dealt with the considerations relevant to visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa);
• Part B (whether to exercise the discretion to refuse a non-citizen’s visa application); and
• Part C (whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa).

Part A, Part B, and Part C were nearly identical. The new Ministerial Direction merges these three parts into one.  The considerations for visa application refusals; discretionary visa cancellations; and revocation of a mandatory visa cancellation on character grounds are now identical.

Definitions previously found in Annex B have been removed. Near the beginning, a new “Interpretation” section has been added.

The Interpretation section provides for family violence and forced marriage definitions. “Family violence” is “violence, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. Specific examples of family violence are listed.

“Forced marriage” occurs when the victim enters into the marriage without freely and fully consenting “because of the use of coercion, threat or deception against the victim or another person” or “because the victim was incapable of understanding the nature and effect of the marriage ceremony” or “was under 16 when the marriage was entered into”.

Far more important that structural changes and the addition of some new definitions are the addition of new factors that decision-makers must turn their mind to.

An additional Primary Consideration

Both the current and previous version require an assessment of “Primary Considerations” when the non-citizen has engaged in serious conduct.

Both have these three Primary Considerations:

• The protection of the Australian community from criminal or other serious conduct;
• The best interests of minor children in Australia; and
• The expectations of the Australian Community.

The new Direction adds:

• Whether the conduct engaged in constituted family violence.

 

Whether the conduct engaged in constituted family violence

This factor represents the biggest change.

The new Direction impacts upon those that have engaged in family violence. The concern is proportionate to the seriousness of the conduct. There are specific factors that must be considered when determining the level of seriousness. The decision-maker must look at the frequency and check if there is a trend of increasing seriousness. They will look too at the cumulative effect. If the offender has been formally warned by a Court or other authority and they have reoffended, that would be another negative factor. If they have not re-offended, this should be a neutral factor – it is not to be viewed in their favour.

Rehabilitation can be a positive factor. Since the time of the last known act of family violence, the decision-maker will consider the extent to which the non-citizen accepts responsibility for the conduct; the extent to which they understand the impact of their behaviour; and their efforts to address the factors which contributed to their conduct.

This Primary Consideration is relevant in circumstances where the non-citizen has been convicted of an offence (or found guilty of an offence) that involved family violence.  If there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence, it will apply.

In addition to this new Primary Consideration, family violence appears again in “sub-considerations” in each of the other Primary Considerations. These too are massive changes from the previous version.

The protection of the Australian community

The nature and seriousness of the conduct

When the decision-maker considers the protection of the Australian community, they need to assess various factors. One is “nature and seriousness of the conduct”. Some types of conduct are to be viewed as “very serious”. Previously, crimes of a violent nature against women or children, regardless of the sentence imposed, fit that category. Now both “violent and/or sexual crimes” and also “acts of family violence, regardless of whether there is a conviction for the offence or sentence imposed” are very serious.

Some types of conduct are to be viewed as “serious”. Examples included crimes against vulnerable members of the community (such as the elderly or the disabled); crimes committed while in immigration detention; and crimes against government representatives or officials due to the position they hold (or in the performance of their duties). These all remain in the new Direction, but “causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there has been a conviction for an offence or the sentence imposed” has been added. That too is serious.

Other types of conduct not categorised as either “very serious” or “serious” are in both Directions. They include things like:

• the frequency of offending, and whether there is a trend of increasing seriousness;
• the cumulative impact of repeated offending;
• whether the non-Citizen provided false or misleading information to the department (including for example, by not disclosing prior criminal offending); and
• whether they have offended again after being given a formal warning.

These have not changed.

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

Most of the factors when considering the risk of recidivism are found in both versions of the Directions. Both state that “some conduct and harm that would be caused, if it were to be repeated, is so serious that any risk that it will be repeated may be unacceptable”. When assessing the risk, decision-makers must have regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of that happening.

A new sub-consideration has been added in the circumstances of determining whether to refuse an application. The decision-maker must now have regard to “whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa”.

It is possible that a visa applicant that applied in the past for a visa might have been refused. They might be able to be granted a short-term visa now because of this change. This provision is a liberalisation that might encourage those that were refused a visa in the past to try again. It is the only change that might work in favour of the interests of the non-citizen.

The Best Interests of Minor Children in Australia

Almost all the factors in this Primary Consideration are the same in both Directions. There is only one exception.

The previous version stated a requirement to consider whether there is any “evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect”.

The new version also requires consideration of whether there is “evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally”.

The Expectations of the Australian community

There have been additional sub-considerations added to this Primary Consideration, too. The previous version provided that the decision-maker needs to be cognisant of the fact that Australian community expects non-citizens to obey laws. When that trust has been breached, then a discretion is enlivened, and it may be appropriate to cancel the visa. The new version adds to this: “Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”.

Some sub-considerations have been carried over, with strengthened wording. In the previous version, visa cancellation might be appropriate merely because of the nature of the offences were such that Australians would expect the person to not continue to hold a visa. The new version clarifies that this applies to visa cancellation and visa application refusal, and to revocation of a mandatory visa cancellation.

Ministerial Direction #90 additionally states “In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere …”. Six specific examples of serious character concerns are then listed:

• acts of family violence;
• causing a person into a forced marriage;
• commission of serious crimes against women, children, or members of the community such as the elderly or the disabled (“serious crimes” include crimes of a violent or sexual nature, as well as fraud, extortion, financial abuse/material exploitation or neglect);
• crimes against government representatives;
• involvement in human trafficking or people smuggling; or
• worker exploitation

The new Direction states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The decision-maker is directed to proceed on the basis that the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

Other Considerations

Decision-makers assess both Primary Considerations and Other Considerations. The structure of the Other Considerations has been modified.

There does not appear to be any major significance to the restructure. The same factors are specified. Changing the order shouldn’t make any difference as each consideration is assessed independently from the others, and none are viewed as more important than any other.

There is much more detail for the decision-maker when international non-refoulment obligations are in play. “Non-refoulment” means not returning a person to a country that they have fled because of a fear of persecution.

There are no additional provisions that relate to family violence in the Other Considerations.

Conclusion

The Potts Lawyers Immigration Law team frequently advise clients that are subject to visa application refusal and visa cancellation matters that are based on character grounds. Any visa holder in Australia, including permanent residents that have been living here for years, may unexpectedly find themselves subject to the requirements of the new Ministerial Direction #90.

We encourage anyone that is subject to these requirements to contact Potts Lawyers without delay.