Ministerial Direction 90 and ‘Impediments to Removal’
Non-citizens in Australia are expected to comply with laws, and not engage in criminal activity or other serious conduct. A non-citizen that has that has not met these expectations can become run afoul of Australia’s Immigration laws, and ultimately find themselves subject to Ministerial Direction 90 (the ‘Direction’). Decision-makers must apply the provisions specified in the Direction to determine what will happen to the immigration status of the wrongdoer.
We’ll cover the Direction in some detail below, but the main focus of this post is on the Impediments to Removal consideration. Many of the considerations of the Direction weigh against the interests of the non-citizen, but (depending upon the particular circumstances of the individual) there can be relevant factors under the ‘Impediments to Removal’ consideration that can provide countervailing reasons that can weigh in favour of the interests of the non-citizen.
The main purpose of this post is to explain how decision-makers need to interpret and apply the ‘Impediments to Removal’ consideration.
When will the Direction apply?
Non-citizens that have engaged in criminal and other serious conduct can find themselves subject to the Direction in three different circumstances. They might be applying for a visa, and hope that it will be granted despite their record of wrongdoing. A non-citizen that holds a visa, even a permanent visa, can become subject to discretionary visa cancellation under ‘character’ grounds. The Direction will be applied when the decision-maker is determining whether or not their visa should be cancelled. The third instance occurs when a visa-holder in Australia is in full time custody and has committed sexually based crimes against a child or has otherwise been sentenced to 12 months or more. In each of these three situations, the decision-maker will need to follow the requirements set out in the Direction.
The Direction will also apply if a review of the relevant decision has been lodged with the Administrative Appeal Tribunal. The Tribunal Member too will need to refer to the Direction when making their assessment.
In this article, we begin by briefly outlining the components that constitute the ‘Primary Considerations’ and the ‘Other Considerations’ in the Direction. Many of the factors in the Direction weigh in favour of protecting Australians from the harmful impact of criminal activity of non-citizens. A person that has committed offences will only succeed with their visa application, prevent the cancellation of their visa, or be able to get their visa back if there are sufficient countervailing reasons to outweigh the risk of allowing the non-citizen to enter, remain in, or to re-join the Australian community.
We then turn to the main focus of this post, by explaining the elements that comprise the ‘Impediments to Removal’ specified in the Direction. It is one of the four ‘Other Considerations’ mentioned above.
Direction 90 Primary Considerations
‘Primary Considerations’ are generally given more weight than ‘Other Considerations’ in the deliberation process. Three of the four Primary Considerations operate against the interests of the non-citizen. The one Primary Consideration that potentially favours the non-citizen only applies when they have a relationship with children under 18 living in Australia.
Protection of the Australian community
The Australian community must be protected from non-citizens that engage in criminal or other serious conduct. This is the first of the four Primary Considerations. Decision-makers need to be mindful of the Australian government’s view that entering Australia and remaining here is a privilege for non-citizens. There is an expectation that they will abide with our laws, and not cause or threaten harm to individuals or the community.
The decision-maker must consider the nature and seriousness of the conduct and the risk that they will re-offend. Naturally, a non-citizen that has engaged in repetitive and serious criminal activity with a high likelihood of recidivism will have a larger obstacle to overcome than someone with few infractions and evidence of rehabilitation.
Whether the non-citizen have engaged in family violence is the second Primary Consideration. This is a new consideration that was not specifically included in Ministerial Direction 79, the previous version of the Direction.
The government’s view is that this consideration should be given weight in proportion to the seriousness of the nature of the family violence. They will consider frequency and whether there are trends in seriousness; the cumulative effect of repeated acts; evidence of rehabilitation; and whether the non-citizen has committed family violence after being formally warned about the consequences of further acts.
This consideration is relevant where the non-citizen has been convicted of an offence (or found guilty of an offence) that involves family violence – or where there is evidence from an independent and authoritative source that the non-citizen has engaged in it.
Best interests of minor children
The best interests of minor children (those that are under 18) in Australia is the only Primary Consideration that potentially work in the interests of a non-citizen. The Direction specifies which factors are relevant in assessing how this Primary Consideration should be weighed.
Decision-makers must make a determination whether cancellation is in the best interests of a child affected by the decision. It only applies if the child is under 18, and that would be under 18 at the time that a decision is expected to be made. If there are two or more children, each needs to be considered independently to the extent that their interests differ.
Please refer to our post on this topic for more details.
Expectations of the Australian community
As mentioned near the top of this article, non-citizens are expected to obey Australian laws while in Australia. If the non-citizen has engaged in serious conduct in breach of this obligation, or if there is an unacceptable risk that they may do so, the Australian community expects the Australian government to prohibit the non-citizen from being here.
This Primary Consideration identifies six types of serious conduct:
- acts of family violence;
- involvement in forced marriages;
- serious crimes against women, children, or other vulnerable members of the community (such as the elderly);
- committing crimes against government representatives due to the position they hold or in the performance of their duties;
- involvement in human trafficking or people smuggling, or in crimes that are of serious international concern include war crimes, crimes against humanity, and slavery; or
- worker exploitation
A non-citizen with a record of having engaged in one or more of the above types of serious conduct will have the weight of this Primary Consideration to overcome.
Direction 90 ‘Other Considerations’
The Direction identifies Other Considerations that, if relevant to the non-citizen, can help to counterbalance the Primary Considerations (and potentially outweigh them).
A non-refoulment obligation is an obligation to not forcibly send a person back to a country where they will be at risk of harm. Australia has signed the ‘Refugees Convention’; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its Second Optional Protocol. The non-refoulment obligations are a factor that can weigh in favour of the non-citizen.
Essentially, this factor recognises that someone that has been granted protection in Australia because of a well-founded fear of persecution in their home country should not be permanently removed from Australia and returned to that country.
Impact upon Victims
The impact of the wrongdoer’s conduct upon victims is specified in the list of the Other Considerations. Victims of the non-citizen’s criminal behaviour, and the impact upon family members of the victim (or victims) will be relevant if there is information available.
Naturally, the more serious the impact, the more heavily this factor will weigh against the non-citizen.
Links to the Australian community
The non-citizen’s links to the Australian community is highly relevant, and one of the most important Other Considerations.
The decision-maker will consider the impact on immediate family members, if they are Australian citizens, Australian permanent residents, or people that have the right to remain in Australia indefinitely. Non-citizens often have parents, brothers, sisters, partners, and other immediately family living here. How the decision will impact upon them is a factor that must be taken into account.
The decision-maker must also consider the strength, nature, and duration of other ties that the non-citizen has to the Australian community. A person that arrived in Australia when they were a young child has relevance. Someone that has been here for a long time is a factor that should be given weight. Less weight would be given to this factor if the non-citizen began offending soon after their arrival in Australia. Unexpectedly, more weight will be applied when the non-citizen has spent a long time contributing to Australia. The contributions could be through the employment here and evidenced through their payment of income tax.
The non-citizen’s links to non-immediate family and to their friends also has relevance.
Impact on Australian business interests
If the non-citizen has an employment link that would significantly compromise the delivery of a major project, or delivery of an important service, the ‘Impact upon Australian business interests’ factor would be also considered under ‘Links to the Australian community’ consideration.
Let’s now turn to the main purpose of this post – the Extent of Impediments if Removed consideration.
Extent of Impediments if Removed
Decision-makers must turn their attention to the kind of life that the non-citizen would experience if permanently removed to their ‘home country’. The decision-maker will consider the impediments that the person would face in establishing themselves and their ability to maintain basic living standards.
Basic living standards are to be assessed according to the context of what is generally available to those living in that other country – not Australian standards. Many countries in the world do not enjoy the high quality of health care, social services, food and water quality, economic opportunities, political freedoms and so on, as we enjoy in Australia. That isn’t relevant. The assessment considers whether the non-citizen will be able to have the basic living standards applicable in that other country.
When making this assessment, one of the factors is the non-citizen’s age. Presumably, a youthful non-citizen would more readily be able to make the adjustment than someone that is elderly. How a decision-maker is to determine the impact of age must be subjective.
The non-citizen’s health is also a factor. Medical evidence would establish whether the health ailments are so serious that the person would be severely impacted if they are removed. A combination of health issues would be troubling and disconcerting for the non-citizen but could be advantageous in the sense that poor health could weigh in their favour.
The existence of substantial language and cultural barriers would be relevant to the assessment of the extent of impediments. A person that has lived in Australia since early childhood and that does not speak the language of their ‘home country’ could have difficulty finding work because of their linguistic difficulties. They might be completely illiterate in the language used in that country.
Research in second language acquisition confirms that learning a new language becomes more challenging as people age. Someone that is elderly, and illiterate and unable to speak the language of the home country might try to persuade the decision-maker of the particular impact of these inter-related factors.
The non-citizen might not understand the culture. Even countries that are said to be similar to Australia (for example New Zealand, Canada, and the UK) are not exactly the same as here. Cultures that are completely different from Australia would be challenging, especially if the non-citizen lacks the linguistic capacity to communicate fluently with the locals. Language proficiency and cultural understanding are highly correlated.
The social, medical, and/or economic support available to the non-citizen in that country is the final factor that is specifically identified in the ‘impediments if removed’ category.
As mentioned above, the decision-maker will need to be cognisant of the non-citizen’s impediments in establishing themselves and their ability to maintain basic living standards that are commonplace in the other country. If the non-citizen were to be unable to access medical facilities in that other country, for example because they cannot meet the eligibility criteria, then the decision-maker will need to turn their mind to that reality. If they lack skills and are unemployable, and they are not eligible for income support or other benefits, the decision-maker will need to consider that reality.
Australian government ‘Country Information Reports’ published by DFAT can sometimes assist a non-citizen that argues that they will suffer because of a dearth of social, medical, and/or economic support will be available to them in that other country.
In summary, the ‘Impediments to Removal’ factor is one the Other Considerations that must be considered by the decision-maker. They will consider age and health. Substantial cultural and linguistic barriers would be relevant. The availability of social, medical, and/or economic support in that country is considered. They consider the extent of impediments the non-citizen may face in establishing themselves and maintaining basic living standards, assessed against what the decision-maker believes to be generally available in that other country.
The assessment of this factor has considerable subjectivity. A non-citizen subject to the Direction would be highly advantaged if they engage an experienced legal advisor that is able to advocate persuasively in their favour, backing up their assertions with relevant Case law and other relevant third-party information sources.
Why choose Potts Lawyers to advise you
Potts Lawyers Immigration Law team assist many clients with complex immigration matters, including mandatory visa cancellation revocation requests; responding to procedural fairness and natural justice letters; discretionary visa cancellation processes; and other complex immigration matters.
We deal with clients that are subject to the scrutiny of the Direction every day. We are able to help non-citizens to exercise their rights under the law to present arguments that address each of the factors discussed in this article. The processes are complex, and the potential implications are profound.
If you or someone you love has become subject to the Direction and want to maximise your chances of having a successful outcome, contact our Immigration Lawyers Craig DoRozario or Tom Foran. We offer a no-obligation initial consultation at no charge.
We look forward to hearing from you.