The government has revealed it will rewrite visa cancellation rules after an independent tribunal gave non-citizens with serious criminal convictions their visas back.
How did this happen – and is a ruling by the immigration minister, Andrew Giles, to blame?
What has changed?
In July 2022 Anthony Albanese and the then New Zealand prime minister, Jacinda Ardern, agreed Australia should shift to a “common sense” approach to visa cancellation that people with significant ties to Australia should not be deported to countries where they lacked community links.
In January 2023 Giles enacted this through a new ministerial ruling, named direction 99, setting out different rules for visa cancellation.
Under the direction the strength, nature and duration of ties to Australia are considered alongside four other “primary considerations”: protecting the community, “whether the conduct engaged in constituted family violence”, the interests of children and expectations of the Australian community.
Who was this intended to benefit?
On Tuesday Guardian Australia revealed that the Department of Home Affairs had told Giles that the direction would benefit non-citizens without “serious offending or family violence”.
The department tested eight visa cancellation decisions. Only two changed under the new rules, applicants with “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.
The department concluded the proposed new direction would “not have a substantive effect” on non-citizens convicted of more serious crimes.
Is this how it worked out?
No. Departmental delegates of the minister continued to cancel the visas of non-citizens who had committed serious crimes, notwithstanding their links to Australia.
But the independent administrative appeals tribunal (AAT), conducting merits review of these decisions, has in multiple cases restored the visas of non-citizens with serious criminal convictions.
These included:
Emmanuel Saki, a Sudanese man later charged with murder after he was released from immigration detention;
A New Zealand-born man referred to as CHCY, convicted of raping his stepdaughter;
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;
Charles William Davidson, a masseur who had been convicted of 59 offences against 26 different victims, including seven counts of rape.
In Davidson’s case the AAT said it had given “very heavy weight” to Davidson’s ties to Australia, as the 74-year-old had come to the country at age five and spent 95% of his life in Australia.
Why did the AAT apply rules in this way?
Essentially, the government thinks the AAT has given too much weight to the strength, nature and duration of ties to Australia and not enough to the other primary considerations.
Labor’s Murray Watt, representing the immigration minister, told Senate estimates that AAT members were “interpreting this direction in a way that no minister in this government intended”.
Giles has said repeatedly that “direction 99 does not decrease the importance placed on considerations such as expectations of the Australian community and the protection of the community from crime”.
But the opposition has noted that ministerial direction 99 also advises that “considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending”.
The Coalition argues it is therefore the government’s fault, and the direction itself, not the AAT, is to blame.
Who is to blame for failure to re-cancel visas?
On Tuesday evening the secretary of the home affairs department, Stephanie Foster, took responsibility for failing to brief the minister’s office that the AAT had restored visas to non-citizens with serious criminal convictions, to allow him to consider re-cancellation.
She said the department “had agreed a protocol, to bring to his attention cases of a particular nature” but then failed to “adequately resource” that function, resulting in delays.
Foster agreed with the shadow home affairs minister, James Paterson’s, characterisation that the failure was “extraordinary”.
“I regret very much that this has happened,” she said. “I was not aware we were failing to meet our obligations.”
How did the government respond?
The home affairs minister, Clare O’Neil, on Wednesday said the government was “really deeply concerned about some of these decisions”.
The immigration minister, Andrew Giles, is “actively reviewing about 30 cases that we are concerned about, indeed he has already cancelled some of those visas”, she said. In question time on Tuesday Giles revealed he had re-cancelled Saki’s visa.
Home affairs officials also revealed on Tuesday that they have given advice on “options” for direction 99 – which is the first time the government has conceded it may re-write the rules again.
On Wednesday the prime minister, Anthony Albanese, revealed in question time that Giles would rewrite the direction.
“The only effective way of ensuring the tribunal members are making better decisions is to issue a new revised direction, which the [immigration] minister will be doing,” he said.
“The new directive will ensure that the protection of the community outweighs any other consideration.”
