A rule change that meant a non-citizen’s ties to Australia would be considered before their visa was cancelled was intended to target people without “serious offending or family violence”, the immigration minister was told in early 2023.
But reports detailing the criminal history of some non-citizens who have had their visas restored appear at odds with the intention of that advice to Andrew Giles – leading the Coalition to pledge it would tear up the new rules if elected.
Documents released under freedom of information laws show the home affairs department ran mock exercises to test how the change could result in visas being reinstated. It concluded it would “not have a substantive effect” on non-citizens convicted of more serious crimes.
The Albanese government is standing by the rule change – dubbed ministerial direction 99 – that was introduced to reflect a “commonsense” approach that people with significant ties to Australia should not be deported to countries where they lacked community links.
An agreement was reached between Anthony Albanese and the then New Zealand prime minister, Jacinda Ardern, in July 2022 and Giles signed off on the change in January 2023.
Under the rules the strength, nature and duration of ties to Australia are considered alongside four other “primary considerations” including protecting the community and “whether the conduct engaged in constituted family violence”.
The department’s submission to Giles on 20 January 2023 noted the rules were “expected to benefit cases with relatively low sentence length”.
“Adverse decisions (eg to not revoke visa cancellation) are more likely in cases involving serious offending or family violence, despite the person having resided in Australia for a considerable period,” it said.
The department tested the likely impact of a new ministerial direction with a “desktop exercise” reviewing a sample of visa cancellation decisions.
Of the eight visa cancellation decisions tested, just two were changed under the new rules, the FoI documents reveal. In those cases, the test applicants “had relatively low sentence length (12 months and 18 months), had lived in Australia since they were children and did not involve family violence”.
In three test cases involving long-term residents with serious offending – a child sexual abuse offence, a murder and “long-term recidivistic offending (some violent)” – the visa cancellation decisions stood.
But at least in some cases decided by the independent administrative appeals tribunal since January 2023, ties to Australia have been a factor weighing in favour of a successful application to reverse a visa cancellation.
In one case, a New Zealand-born man – referred to as CHCY – was given his visa back in March despite being found guilty of nine counts of indecent treatment of a child under 16 and two counts of rape in relation to his stepdaughter.
The AAT “found that CHCY’s strength, nature and duration of ties to Australia as a primary consideration, weighs in favour of revocation of his visa cancellation as he has lived here for 21 years”.
The tribunal said CHCY had “violated the expectation that he be a law-abiding citizen” and would ordinarily lose his visa, but restored it due to his “particular circumstances and those of the victim”. The government believes this indicates the fact the victim had moved to New Zealand was the decisive factor, not the new rules.
In another case an Iranian-born man known as YVBM with common assault convictions had his visa restored after the AAT found ties to Australia weighed “heavily in favour” of that outcome.
There were other mitigating factors, including his remorse and that his partner had forgiven him for his behaviour and believed him rehabilitated.
In another man’s case, the applicant had been convicted of two counts of breaching an AVO, common assault by grabbing his teen son by the hair, and an assault occasioning actual bodily harm for punching his wife.
Despite finding there was “a real risk he may reoffend” the AAT restored his visa in part because of ties to Australia, but also because the best interests of his children weighed “heavily” in favour of that outcome.
On Monday the shadow immigration minister, Dan Tehan, said the Coalition “will, on day one as a priority, rescind that Andrew Giles ministerial direction, if we are elected at the next election”.
Tehan said the case of CHCY showed the ministerial direction was “clearly failing”.
The deputy prime minister, Richard Marles, said the decision in the case of CHCY had been taken by an independent tribunal to overturn the government’s visa cancellation.
A government spokesperson said the rule change “places a significant emphasis on serious offending and family violence which will need to be considered in all matters”.
