Immigration Minister Andrew Giles has come under intense pressure from the opposition over a ministerial direction that saw a foreign national’s ties to Australia taken into account during tribunal decisions on whether that person’s visa should be cancelled.
How did we get here?
In 2022, Anthony Albanese extended an olive branch to the then prime minister of New Zealand, Jacinda Ardern. The first foreign leader to be hosted by the new Albanese government, Ardern used a trip to Sydney to bring up a longstanding Kiwi gripe: the use of section 501 of Australia’s Migration Act to cancel visas on character grounds. Most people who lost their visas that way were either citizens of New Zealand or the UK, and most had committed drug offences.
“There are some who are being deported from Australia who, for all intents and purposes, are Australian. Often zero connection to New Zealand, sometimes not even stepped foot there. That’s the place that we’re asking for that consideration to be given,” Ardern told reporters during her visit.
During the same press conference, Albanese said his government would keep Section 501, but seek to accommodate New Zealand’s wishes and “work through with our department, work through the implementation of the way that Section 501 has been dealt with”.
“We’ve listened to the concerns and there’s more work to do,” Albanese added.
The solution was to issue a new ministerial direction, avoiding the need to bring any changes through Parliament.
Albanese’s campaign team appears to have envisioned that move even before he was elected – a story in Guardian Australia, published two days before the 2022 election, said it was understood “a Labor government would continue deportations under section 501 of the Migration Act as currently in force, but would be likely to adjust the ministerial direction to ensure decisions better take into account the time a person has been in Australia.”
What is direction 99?
Ministerial direction 99, signed by Giles in January 2023, replaced an earlier direction, number 90, brought in by his predecessor Alex Hawke.
It instructs decision-makers to view an offender’s ties to Australia as a “primary consideration” instead of a secondary one.
Under the new direction, factors to be taken into consideration for visa cases include the protection of the community, whether the offending conduct constituted family violence, the ties of the person to Australia and the best interests of children.
What has happened this week?
Giles was bombarded with questions from the opposition during Tuesday’s question time. Opposition Leader Peter Dutton, Deputy Opposition Leader Sussan Ley, and several backbenchers all asked Giles to take responsibility and apologise for a number of cases where offenders who had committed or were accused of committing sexual and violent crimes had been allowed to stay in Australia due to the language in ministerial direction 99.
Giles said he would step in and consider the “urgent cancellation” of visas in several of the cases, and blamed other decisions on the Administrative Appeals Tribunal.
“I say again that direction 99 did not and does not decrease the importance placed on the considerations such as the expectations of the Australian community and the protection of the community from crime. That remains unchanged under this government,” Giles said at one point.
Meanwhile, in Senate estimates, Home Affairs secretary Stephanie Foster admitted her department failed to give advice to Giles about tribunal decisions that he should have been made aware of.
“The department did fail him (Minister Giles), we did not meet our very clear protocol and in particular we have not put advice before him in any way on the … cases that have been the subject (of media reporting),” she told a Senate estimates hearing on Tuesday.
“We’re not saying that none of these cases would have gone to the minister. We’re saying they have not yet gone to him … that’s what I’m trying to get to the bottom of.”
— with AAP
