Direction No 90 | Visa refusal & Cancellation

immigration lawyer brisbane direction no 90 visa refusal visa cancellation under section 501 and 501CA
Visa refusal & Cancellation under section 501 and 501CA

Direction No 90 is the Ministerial Direction provides consideration for the decision maker to consider when refusing or cancelling a visa under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

Direction No 90 replaces Direction No 79, it commences on 15 April 2021. Like other Ministerial Directions, Direction No 90 is given by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under section 499 of the Migration Act 1958.

The Migration Act 1958 regulate, in Australia interest, the presence of non-citizens in the country. A non-citizen who does not pass the character test is liable to have his or her visa application refused or their visa cancelled.

Section 501(1) prescribes that a non-citizen may be refused a visa if they do not pass the character test. Similarly, under section 501(2), a non-citizen may have their visa cancelled if they do not pass the character test.

When the discretion to refuse or to cancel a visa is activated, the decision maker must consider the specific circumstances of the case in deciding whether to refuse or cancel the visa. In short, the decision maker must be satisfied that the person passes the character test (because of the operation of section 501(6)(a) on the basis of section 501(7)(a), (b) or (c) or section 501(6)(e)) or servicing a sentence of full-time imprisonment for an offence against an Australian law.

Where the visa holder has their visa cancelled under section 501(3A), they may request for the cancellation order be revoked under section 501CA. If the decision maker is not satisfied that the non-citizen passes the character test, the decision maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

Purpose of Direction No 90

The purpose of Direction No 90 is to direct the decision maker in deciding whether to refuse or to cancel a visa (under section 501) or revoke a cancelled visa (under section 501CA). The decision maker must comply with Direction No 90 (section 499(2)).

Direction No 90 contains factors that the decision maker must consider when deciding whether to refuse or cancel a visa or whether or not to revoke a cancelled visa.

Principles of Direction No 90

The principles of Direction No 90 are:

  • Australia has a right to determine whether non-citizens who are of character concern be allowed to enter and/or remain in the country.
  • Non-citizens who engage or have engaged in criminal or other serious conduct may be denied the privilege of coming to, or removed from, Australia.
  • Australian community expect that the Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in, whether in Australia or elsewhere, conduct that raises serious character concerns.
  • Australia has a low tolerance of any criminal or other serious conduct of non-citizens who contribute to the Australian community only for a short period of time. Those who have lived in the Australian community for most of their life, or from a very young age may be afforded a higher level of tolerance of criminal or other serious conduct.
  • Decision makers must take into account the primary and other considerations relevant to the individual case. In cases where the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may not be enough to justify not refusing or cancelling the visa, or revoking a mandatory visa cancellation. For example, family violence conduct even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Exercising Direction No 90 discretion

The decision maker should give appropriate weight for both primary and other considerations. However, primary considerations are generally given greater weight than the other considerations; and 1 or more primary considerations may outweigh other primary considerations.

Direction No 90 Primary Considerations

There are 4 primary considerations in the Direction No 90 which the decision maker has to take into consideration when making a decision under section 501(1), 501(2) or 501CA(4).

  1. Protection of the Australian community. Australian government is committed to protecting the community from harm from non-citizens’ criminal activity or serious conduct. Staying in Australia is a privilege for non-citizens who must be law abiding, respecting important institutions and will not cause or threaten hard to individuals or the Australian community. This is the expectation the Australian government have on non-citizens wanting to enter or remain in Australia.

The decision maker will give consideration to the nature and seriousness of the non-citizen’s conduct and the risk of the Australian community if the non-citizen commit further offences or engage in other serious conduct.

  • The nature and seriousness of the conduct. The decision maker when considering the non-citizen’s criminal offending or other conduct, must have regard to (not exhaustive):

Very serious conduct

  1. whether the conduct is related to violent and/or sexual crimes
  2. whether the violent crimes is against women or children, regardless of the sentence imposed
  3. whether the conduct is an act of family violence, regardless of whether there is a conviction or a sentence imposed

Serious conduct

  1. causing or being a party to a forced marriage, regardless of whether there is a conviction or a sentence imposed
  2. committing a crime against vulnerable people, for e.g., elderly and the disabled, or government representatives or officials because of the position they hold, or in the performance of their duties
  3. any conduct that forms the basis that the non-citizen does not pass an aspect of the character test (section 501(6)(c))
  4. a crime committed while in immigration detention or while escaping or having escaped from immigration detention (section 197A prohibiting escaping from immigration detention)
  • a sentence imposed by the courts for a crime(s)
  • how often did the non-citizen offended
  • is the offending becoming more serious
  • the cumulative effect of repeated offending
  • whether the non-citizen has provided false or misleading information to the Department, including not disclosing prior criminal offending
  • if the non-citizen has been formally warned, or being made aware, in writing, reoffended (if there was no formal warning, it is not considered to be in the non-citizen’s favour)
  • The risk to the Australian community if there is further offences or engage in other serious conduct. Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, hence any risk that may be repeated may be unacceptable. The decision maker must have regard to:
  • the nature of the harm if the non-citizen engage in further criminal or other serious conduct by considering information and evidence on the risk of re-offending; and evidence of rehabilitation completed, time spent in the community since most recent offence

When deciding whether to grant a visa, the decision maker must consider whether the risk of harm may be affected by the duration and purpose of the intended stay, the type of visa applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Family violence

The Australian government has serious concerns of people who engage in family violence. Those who has been convicted, found guilty or had charges proven that involve family violence; and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and has been afforded procedural fairness, is relevant consideration under section 501 or section 501CA.

Seriousness of the family violence

The following factors will be used to determine the seriousness of the family violence:

  1. the frequency of the conduct and/or whether there is any trend of increasing seriousness
  2. the cumulative effect of repeated acts of family violence
  3. whether the non-citizen has been rehabilitated since the last known act of family violence; and
  4. whether the non-citizen has accepted responsibility for their conduct
  5. to what extent the non-citizen understands the impact of their behaviour on the victim and witness of that abuse, particularly children
  6. efforts to address factors which contributed to their family violence conduct
  7. whether the non-citizen has re-offended after family violence conduct is known and warned (absence of warning is not considered to be in the non-citizen’s favour)

Best interests of minor children in Australia affected by the decision

The decision maker has to consider whether the best interests of a child (under 18) is affected by section 501 visa refusal or cancellation or section 501CA non-revocation of visa cancellation. If there is more than 1 child, then each child’s best interests will be considered as their interests may differ.

Best interests of minor children – factors

  1. nature and duration of their relationship. Less weight will be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including an existing Court order restricting contact)
  2. what role the non-citizen is likely to play a positive parental role in the child’s future (up to 18) (including an existing Court orders relating to parental access and care arrangements)
  3. the impact of prior conduct, and likely future conduct, and whether that conduct has, or will have a negative impact on the child
  4. the likely effect of their separation and the ability for them to maintain contact in other ways
  5. whether there are other persons fulfilling a parental role
  6. child’s views (weight depends on age and maturity of the child)
  7. evidence whether the child has been, or is at risk, or exposed to, family violence, or has been abused or neglected by the non-citizen in any way (physically, sexually or mentally)
  8. evidence whether the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct

Expectations of the Australian community

Australian community expects non-citizens to obey Australian laws. The community expects the Australian government not to allow non-citizens who have engaged in serious conduct or where there is an unacceptable risk that they may do so, to enter or remain in Australia.

Australian community expects the government to refuse entry or cancel non-citizens’ visas if they raise serious character concerns through their conduct anywhere if their conduct (not necessarily involve physical harm to the community and the community generally) involve:

  1. acts of family violence; or
  2. forced marriage
  3. committing serious crimes against women, children or other vulnerable members (e.g., elderly or disabled) of the community. Serious crimes include crimes of a violent or sexual nature; fraud, extortion, financial abuse/material exploitation or neglect against the elderly or disabled
  4. crimes against government representatives or officials due to their position, or in the performance of their duties; or
  5. suspected to, or involved in human trafficking or people smuggling, or in crimes that are of serious international concerns, for e.g., war crimes, crimes against humanity and slavery; or
  6. worker exploitation

Other considerations

The decision maker when considering whether to refuse or cancel a visa or revoke a cancellation under section 501(1), 501(2) or 501CA(4), must also take into account:

  1. Australia’s international non-refoulement obligations
  2. the extent impediments if the non-citizen is to be removed
  3. impact on victims
  4. the non-citizen links to the Australian community (e.g., strength, nature and duration of ties to Australia) and the impact on Australian business interests.

International non-refoulement obligations

Non-refoulement means not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), the 1951 Convention relating to the Status of Refugees (Refugees Convention), and the International Covenant on Civil and Political Rights (the ICCPR).

It is relevant whether Australia has non-refoulement obligations (section 197C) because section 198 provides for the removal from Australia as soon as reasonably practicable, and section 189 requires unlawful non-citizens to be detent.

In addition, it does not mean when Australian non-refoulement obligation is enlivened, a visa cannot be refused or cancelled or mandatory visa cancellation must be revoked. This is because the non-citizen could be removed to another country where s/he does not face any risk of harm or the Minister can use his section 195A discretion to grant another visa or use section 197A discretion to make a residence determination to enable the non-citizen to live in a specific place in the community. Also, the non-citizen could also apply for a protection visa (click here to learn more about Subclass 866 visa) and will not be removed until the visa application is being determined.

Furthermore, international refoulement obligations will not be relevant unless the visa application or visa cancellation or revocation is a protection visa.

You should be aware that if the visa application or visa cancellation is a protection visa, you may not be able to lodge another protection visa application (section 48A) unless the Minister exercise his discretion under section 48B that section 48A does not apply to you. In addition, a visa application is refused or visa is cancelled under section 501 or visa cancellation is not revoked under section 501CA, you can only apply for a Bridging Visa Class WR (section 501E; r. 2.12AA).

Extent of impediments if removed

When considering whether to refuse or cancel or not to revoke your visa cancellation, the decision maker must consider the extent of any impediments you may face if you are deported back to your home country, for e.g., difficulty establishing yourself and maintaining basic living standards (comparing with local residents) taking into account your age, health; your language or cultural barriers; and any social, medical and/or economic support available to you in your home country.

Impact on victims

What this mean is if your visa application is refused or visa cancelled or your visa cancellation is not revoked, what is the impact  on members of the Australian community, including the victims  and their family of your criminal behaviour.

Links to the Australian community

If you have family members in Australia who are Australian citizens, PRs or having a right to remain definitely. The decision maker must consider the strength, nature and duration of these ties. Also, the nature of your family or social links with Australian citizens. The decision maker must consider how long you have lived in Australia. Less weigh will be given you start offending soon after arriving in Australia. More weight will be given to the time for contributing positively to the Australian community.

Impact on Australian business interests

The decision maker must consider if your visa application is refused or cancelled or cancellation is not revoked, and your employer’s business will be adversely affected because if you were not in Australia, it would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) or click here to decide whether to retain a registered immigration agent or a migration lawyer.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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