New rules on visa cancellation that emphasise the importance of community protection and impact on victims of crime will still allow decision-makers to favour factors other than safety as their paramount consideration.
On Friday the immigration minister, Andrew Giles, revealed he had made ministerial direction 110 “strengthening our cancellation system to better reflect community expectations” after a spate of cases of visa cancellations of non-citizens who had committed serious offences being overturned by an independent tribunal. The new rules will be in force from 21 June.
The new direction “makes it clear that the safety of the Australian community is the government’s highest priority – and includes this as a key principle of the decision-making framework”, Giles said in a statement.
While that is true, the direction also states that protection of the Australian community is “generally to be given greater weight than other primary considerations”, which suggests the decision-maker retains a discretion to depart from safety as the paramount consideration.
“Otherwise, primary considerations should generally be given greater weight than the other considerations,” it said.
“One or more primary considerations may outweigh other primary considerations.”
A government spokesperson said: “The word “generally” is consistent with language used in previous directions, including direction 90 signed by the former government.
“The minister retains the ability to overturn visa decisions and will do so in the national interest when necessary, and without hesitation.”
Giles told reporters in Melbourne the new direction “also elevates the impact on victims of family violence and their families into one of the existing primary considerations, reflecting the government’s zero-tolerance approach to domestic and family violence”.
The direction does so by specifying when weighing the “nature and seriousness of the conduct” the decision-maker should consider the “impact of the offending on any victims of offending or other conduct and their family”, provided the non-citizen has been afforded procedural fairness to respond.
In January 2023 the Albanese government issued ministerial direction 99 specifying that when deciding whether to cancel a visa on character grounds, the strength, nature and duration of the non-citizens’ ties to Australia must be considered alongside four other “primary considerations”.
These included protecting the community, “whether the conduct engaged in constituted family violence”, the interests of children and expectations of the Australian community. Direction 110 retains the same five primary considerations.
After a spate of cases in which the administrative appeals tribunal overruled the government’s visa cancellations, Labor conceded last week that the rules were not operating as intended and vowed to replace direction 99.
The opposition leader, Peter Dutton, said the new direction 110 “doesn’t give much change in circumstance at all, it will still give rise to the sort of outcomes that we’ve seen in allowing these people to stay in our community”.
Dutton told reporters in Melbourne that the prime minister, Anthony Albanese, and Giles – who he described as a “patsy” taking the blame – had “made us as a society less safe”.
“Unfortunately the prime minister through direction 99 has put Australians second,” he said, calling on Albanese to apologise.
“There are people who have fallen victim to these criminals who have stayed in our country who should have been deported.”
Dutton said the new direction should have immediate effect and be retrospective, if possible, and complained that non-citizens of all countries, not just New Zealand, benefit from the rules.
The New Zealand prime minister, Christopher Luxon, said it did “not want to see deportation of people with little or no connection to New Zealand, whose formative experiences were nearly all in Australia”.
“We will be monitoring how this change is implemented and expect the Australian government to live up to its commitment to a ‘common sense’ approach to deportations,” he said in a statement.
Earlier, Giles said he has re-cancelled 40 visas since the home affairs department began alerting him to a backlog of decisions the AAT had overturned. Stephanie Foster, the department’s secretary, has taken responsibility for failing to alert the minister in a “timely” way.
Around 10 cases may be dealt with by the AAT in the next fortnight under the old rules, but they will be considered by the minister within 24 hours for re-cancellation if the decision goes against the government.
Giles said that his concern “is to act in the national interest” and confirmed he had told the New Zealand foreign minister, Winston Peters, about the new revised directions “to ensure that the principles of common sense and the protection of the Australian community were paramount when it came to visa conditions”.
