The Australian Government has introduced stronger measures surrounding the immigration character test for non-citizens applying for a visa to enter or remain in Australia. Commencing on 15 April 2021, Ministerial Direction 90 will come into force. This Direction strengthens the existing character test and sets out a range of considerations for decision makers in exercising their discretion whether to refuse or cancel a visa.
Crucially, the Direction expands upon the instances where a delegate may use their powers to refuse or cancel a visa. This new Direction follows a series of changes intended to strengthen the character test over the past few years. Ministerial Direction 90 replaces Ministerial Direction 79, which itself replaced Direction 65. Each direction has progressively expanded the grounds under which the Department may refuse or cancel a visa for character reasons.
The key impact of Ministerial Direction 90 is recognizing the principle that crimes of a violent or exploitative nature against women, children or vulnerable members of society are to be taken more seriously. Consequentially, the Direction reflects a more vigorous response to the concerns of family violence and exploitation in the community.
On the issuance of the new Direction, The Hon Alex Hawke MP (Minister for Immigration) stated:
“Being a member of the Australian community is a privilege, and it comes with a responsibility to respect and abide by our laws…Family violence, and crimes against vulnerable members of the community, have no place in Australia and will not be tolerated.”
Background to the Visa Cancellation and Refusal Powers
There are a range of grounds under which a visa can be cancelled by an officer of the Department of Home Affairs. A visa can be cancelled for any of the following reasons:
- Cancelled due to breaching a visa condition;
- Cancelled on reasonable suspicion that conditions of the visa are being breached;
- Cancelled due to a pending criminal charge;
- Cancelled due to providing false and/or misleading information on a visa application;
- Cancelled due to the student visa holder not meeting the requirements of their course or not remaining enrolled full-time;
- Cancelled due to the temporary sponsored employee ceasing work whilst on a relevant visa, and not lodging a new application within 90 days;
- Cancelled at the airport for failing to disclose the reasons for travel, or providing inconsistent information, or bringing hazardous material onshore;
- Cancelled for a permanent visa holder who has not entered Australia by the date prescribed by the Minister on the grant of the visa;
- Lastly, cancelled due to failing to meet the conditions of the character test.
This article will focus on cancellations due to failing to meet the character test.
An Australian visa can only be cancelled by the Department of Home Affairs or, in the alternative, by the visa holder writing to the Department to request a cancellation of an existing visa. No third party, or other department in Australia, can cancel your visa. This means that any cancellation action will likely follow a triggering event that is disclosed to the Department.
There are two categories of cancellation: discretionary cancellation and mandatory cancellation.
For discretionary cancellations, you will ordinarily receive a letter from the Department advising you that your visa is under consideration for cancellation. This is known as a Notice of Intention to Consider Cancellation.
If you receive this notice, it will stipulate a time period for you to respond to the adverse material. Generally, this notice indicates that in the absence of a compelling and persuasive response, it is likely the Department will proceed to cancel your visa. In such circumstances, it is recommended that you seek legal advice upon first receiving such a notice.
After receiving your response to the notice, the Department may accept your response – in which case your visa will continue to remain in force. Should the Department fail to accept your response to the notice, or if you do not respond, then a Cancellation Notice will be sent to you. Ordinarily, if you receive a cancellation notice, there will be a period of time in which you can make an application for merits review of this decision.
Alternatively, following mandatory cancellation the visa holder will not receive a warning from the Department about the pending cancellation. Mandatory cancellation generally occurs if you’re received a conviction for an offence that causes you to fail the character test.
The Department of Home Affairs is notified by the Australian Federal Police in relation to any criminal offences that you may incur. This may happen at any stage after you have received a conviction, including within the period in which you are subject to a custodial sentence. The Department of Home Affairs will generally not start the cancellation process until your period of custodial sentence is almost complete.
As a general rule, upon release or immediately after release, if your visa will be cancelled, the Department will notify you directly of your visa cancellation. in such an instance, you will have the opportunity to have the decision reviewed at the Administrative Appeals Tribunal (AAT). In some circumstances, you may need to make an appeal directly to the Federal Court. It is extremely important to remember that you may only have a limited timeframe to make this appeal – in some cases, the time to apply can be as short as seven days. Your cancellation notice will specify how many days you have to make this appeal.
The Character Test
At the core of visa cancellations is the character test, which is set out under Section 501 of the Migration Act 1958 (Cth). You will not pass the character test if:
1. You have a substantial criminal record, which entails either:
a) A sentence of imprisonment of 12 months or more, or
b) A sentence of a number of shorter periods of imprisonment, either consecutively or concurrently, that cumulatively add up to 12 month or more, or;
c) You’ve been found not guilty due to mental illness, and have been detained under a mental health order.
2. You have an association with an individual group or organization which is suspected of being involved in criminal conduct;
3. You are not of good character, having regard to your past and present, criminal or general conduct; or
4. You are at significant risk of engaging in future unacceptable conduct.
Ministerial Direction 90
Commencing from 15th April 2021, Direction 90 is a ministerial guidance document that provides instruction on how cancellations under the ‘character test’ of Section 501 should be executed.
- Violent and/or sexual crimes;
- Crimes of a violent nature against women and children, regardless of the sentence imposed;
- Acts of family violence, regardless of the sentence imposed.
The following conduct has been categorized under the Direction as constituting serious conduct:
- Causing a person to enter into a forced marriage, regardless of whether a conviction was imposed;
- Crimes against vulnerable people, such as the disabled, elderly, government representatives or officials
- Crimes committed in immigration detention during an escape or after an escape from a detention centre
- Crimes against humanity, people-trafficking and work exploitation
Am I likely to be affected by Ministerial Direction 90?
We have assessed that the individuals in the following circumstances are likely to be directly affected by Ministerial Direction 90.
1. Visa applicants with a record of domestic violence (DV).
This may include a scenario where you are reported by a third party, such as a day-care centre or primary school, for suspected domestic violence.
2. Visa applicants with a history of DV-related orders or apprehended violence orders
This may include a scenario where a domestic violence order (DVO) was instituted by a third party, and may include a scenario where the visa applicant adhered to the conditions of the DVO and no conviction was recorded.
3. Visa applicants with a history of work exploitation
This may include circumstances where you are the director of a company which had a civil or criminal penalty imposed in relation to employment issues with its employees.
What is most significant in the changes that Ministerial Direction 90 delivers is the potential of a visa cancellation in fresh circumstances where a conviction has not been recorded. Additionally under the Direction, Departmental officers are mandated to consider: “whether there is informational evidence, from independent and authoritative sources, indicating that the non-citizen is or has been involved in the perpetration of family violence”.
Appeals to the Administrative Appeals Tribunal
The AAT conducts independent merits review of administrative decisions made under Commonwealth laws. Decisions are made by a tribunal member who will review the Department’s decision and the facts of your situation. If you are considering applying for merits review you should speak to an immigration lawyer. Do not leave it too late to take action – the moment you receive an adverse notice from the Department of Home Affairs, you should seek legal advice. Check this specific visa holders who are affected by the cancellation or refusal notice, it may differ depending on whether the applicant is the primary or secondary applicant.
If you have been issued a Notice of Intention to Consider Cancellation or a Cancellation Notice and are considering your options, or if you are seeking more advice as to your current migration and visa circumstances, please do not hesitate to call one of Corney & Lind Lawyers’ migration law specialists today.
[JL1]The original transcript stated “the following conduct has been categorized as constituting very serious violent and or sexual crimes”. I utilised another source, and it indicated that “violent and/or sexual crimes” might be examples of very serious conduct. Does this edit keep your intended meaning? [JL1]