Ministerial Direction no. 99 – New legislation for non-citizen character assessment
New legislation for non-citizen character assessment to take effect from 3 March 2023
Non-citizens in Australia that do not pass the ‘character test’ are liable to have their Australian visa cancelled or their visa application refused.
The character test is found in paragraph 6 of section 501 of the Migration Act 1958. There are various grounds under which a person can fail the character test.
A person that fails even one ground will not pass. Amongst the various ways that they can fail the character test is:
- if they have a ‘substantial criminal record’;
- if they have been convicted for sexually based offences involving a child;
- if they have been assessed by the Australian Security Intelligence Organisation to be a security risk;
- and if they have engaged in various other types of serious conduct.
Discussion of the character test is not directly relevant to the main purpose of this post, but the change in the laws that arise when someone doesn’t pass the character test is.
What if a Non-Citizen Fails the Character Test?
If a non-citizen fails the character test, that does not necessarily mean that their visa will be cancelled. There are both mandatory and also discretionary visa cancellation powers that apply in relation to the visa holder’s character.
A non-citizen that fails the character test might be able to have an Australian visa granted. The decision-maker is able to take various factors into consideration and has the discretion to grant a visa application, cancel a visa, or revoke the cancellation of a visa if it is appropriate to do so.
A specialised team of decision-makers working for the Department of Home Affairs are employed to assess reasons for and against the contention that a non-citizen’s visa should be cancelled (discretionary visa cancellation); the visa should be re-instated (if considering a revocation request of a mandatory visa cancellation); or an Australian visa be granted to the non-citizen.
Those decision-makers must take into account factors set out in a Ministerial Direction when assessing whether to make a decision relevant to a non-citizen that does not pass the character test.
Updated Legislation is Here
New legislation takes effect from 3 March 2023. It is a new Ministerial Direction.
The main purpose of this post is to explain the main changes from the previous Ministerial Direction. Some non-citizens will become highly advantaged when the new law comes into effect.
Few or none will become disadvantaged.
The strength, nature and duration of ties to Australia
‘Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ replaces the previous ‘Direction no. 90’. They are similar documents. Many sections in the new Direction ‘copy and paste’ the instructions from the previous Direction.
The former Direction required the decision-maker to assess the strength, nature and duration of ties to Australia. It was not a ‘Primary Consideration’. Instead, that factor was specified as one of the subfactors to be weighed when assessing the ‘links to the Australian community’. Links to the Australian community was not a Primary Consideration. it was one of the four ‘Other Considerations’. One of the biggest differences between the old and the new Directions is that ‘the strength, nature and duration of ties to Australia’ has moved from being a relatively minor factor to becoming a ‘Primary Consideration’. There has been a huge change in emphasis regarding this factor as a result of the change.
Section 7 of both Directions provide for how relevant considerations are to be taken into account. Information and evidence from independent and authoritative sources should be given ‘appropriate weight’. Primary Considerations should generally weigh more than Other Considerations. One or more Primary Considerations can outweigh other Primary Considerations. Pursuant to this section, it is apparent that the move from relative obscurity to become one of the Primary Considerations is a significant change.
Both the previous Direction and the Direction no. 99 identifies ‘protection of the Australian community from criminal or other serious conduct’ as the first Primary Consideration. Similarly, ‘whether the conduct engaged in constituted family violence’ is the second.
Family violence considerations were newly inserted when Direction no. 90 replaced the former Direction no. 79.
‘The strength, nature and duration of ties to Australia’ has been inserted as the new third Primary Consideration.
‘The best interests of minor children in Australia’ (now fourth) and ‘expectations of the Australian community’ (now fifth) rollover unchanged from the previous Direction.
The New Primary Consideration
The change in emphasis reflects the view of the Australian government that when deciding such significant matters, more weight should be given to the interests of those non-citizens that have lived in Australia for a long time and that formed strong ties here.
In this new Primary Consideration, the decision maker must consider how an adverse outcome will impact upon immediate family members that live in Australia. The impact of immediate family members that are Australian citizens, Australian permanent residents, and New Zealand citizens living here will be assessed.
The impact upon non-resident immediate family members that hold various temporary Australian visas (for example a Student visa or a Working Holiday visa) will not be given much weight.
Direction no. 99 requires the decision-maker to give ‘more weight’ to a non-citizen’s ties to their child or children, if those offspring are Australian citizens, permanent residents, or New Zealand citizens. The phrase ‘more weight’ is rather ambiguous. The best interests of minor children is already one of the other Primary Considerations. Perhaps ‘more weight’ means compared to the other factors to be considered when assessing ‘the strength, nature and duration of ties to Australia’, although it could mean ‘more weight’ than was given before the change.
It appears that the new legislation requires the decision-maker to give weight to the ties that the non-citizen has to their children that live here. The other Primary Consideration that considers ‘the best interests of children’ gives weight to the impact of an adverse decision upon the child or children.
Links to other family members (for example, non-immediate family such as cousins) and social links generally with Australian citizens, permanent residents, and New Zealand citizens living here are to be considered.
Non-citizens that do not have children and non-citizens without immediate family members can be advantaged by this factor if they have formed friendships and relationships with others that live here.
‘Any other ties’ of a non-citizen to the Australian community must be considered when assessing this Primary Consideration. Decision-makers must have regard to the length of time that the non-citizen has resided here. There are no set number of years that act as a threshold.
The longer the length of time, the better. The decision-maker needs to give considerable weight to this factor if the non-citizen has been ordinarily resident in Australia during and since their formative years.
More weight should be given to the time spent here where the non-citizen has contributed positively to the Australian community.
Less weight is to be given in circumstances that the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia in their formative years and the non-citizen began offending soon after arriving in Australia.
Other Differences between the new and the old Direction
There are a few minor changes in the wording of some of the sections. For example, previously Part 2 was called ‘Exercising the discretion’ but it is now called ‘Making a decision’. As suggested above, the ‘Other Considerations’ have been amended to reflect the movement of ‘the strength, nature and duration of ties to Australia’ into a Primary Consideration.
In the Preamble to the new Direction, the fourth principle used to include the sentence ‘However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age’.
This sentence has been deleted as one of the Principles that underline assessment, presumably because that concept has been given so much more emphasis because of the insertion of the new Primary Consideration.
Aside from the increased weight to be given to consideration of ‘the strength, nature and duration of ties to Australia’, the other major change relates to the section that covers international non-refoulment obligations.
A non-refoulment obligation is an obligation to not forcibly return someone to a place where they will be a risk of specific harm. Australia has signed international agreements including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, and others.
In the previous Direction, consideration of international non-refoulment obligations was the first of the Other Considerations. The new Direction also covers international non-refoulment obligations as the first of the Other Considerations, but the new section is called ‘legal consequences of the decision’. One of the differences in Direction no. 99 is the segregation of instructions for when the non-citizen is covered by a protection finding (they were granted a Protection visa) and for when the non-citizen is not covered by a protection finding.
A non-citizen that was granted a Protection visa will be prevented by section 48A of the Migration Act 1958 from applying again for a Protection visa from inside Australia (unless the Minister determines that section of the Act does not apply to them). A visa application refusal or a visa cancellation made under section 501, or a non-revocation decision made under section 501CA prevents them from applying for almost any Australian visa (unless they leave Australia and apply from offshore).
A person that was not granted a Protection visa (for example they migrated to Australia because they were granted a Partner visa, a Skilled visa, an Employer Sponsored visa, or some other visa) is able to claim that international non-refoulment obligations apply. When this happens, where it is open to the non-citizen to apply for a Protection visa, the decision-makers are told that it is not necessary at this to stage to consider non-refoulment issues to the same level of detail as they would be considered when assessing a Protection visa application.
When assessing international non-refoulment obligations, decision-makers are reminded that a refusal, a cancellation, or a non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which non-refoulment obligations exist.
They could be removed to another country.
The Minister could exercise their personal discretion to grant them a visa, or alternatively make a residence determination to enable the non-citizen to reside at a specific place in the community and be subject to appropriate conditions.
Misleading News Reports
In early February 2023, various media sources somewhat inaccurately implied that the changes only apply to New Zealanders. The new Direction applies to all non-citizens that fail the character test and consideration must be given to their immigration status.
New Zealand citizens have been impacted by changes in character-based visa cancellation laws more profoundly than citizens of other countries because there are many New Zealand citizens living here. The writer is aware of statistics showing that New Zealand citizens living in Australia have slightly higher average incomes that Australians, contributing disproportionately to our tax revenue system. New Zealand subclass 444 visa holders are excluded from various government benefits, even though they are required to contribute to the cost of those programs.
The media sources point to talks between the New Zealand and Australian governments as the foundation of the change. Previously, long-term residents including New Zealand citizens could be permanently removed from Australia under the character provisions in the legislation.
Some of the people impacted had been in Australia since early childhood and otherwise had no connection with the country of their birth. Some claimed that the Australian deportation laws (the word ‘removal’ is actually more accurate) could result in unfair outcomes.
The character provisions in the Act apply to all visa applicants and visa holders, but it is clear that Direction no. 99 is going to benefit those non-citizens that have been living in Australia for a long time. Their links to Australia were considered in the previous Direction, but the importance of this factor has gained prominence.
Non-citizens that have lived in Australia for a long time and that have children, immediate family, extended family, and social connections with people living here will be advantaged. Those connections will be given much more weight than before because of the insertion of the new Primary Consideration.
Contact Us for Legal Advice
Please contact Potts Lawyers if you or someone you know is likely to be impacted by visa cancellation or visa application refusal laws.
Our Migration Lawyers are highly experienced in assisting our clients with complex, character-based immigration matters.