On 15 April 2021, the Minister for Immigration gave a directive to expand the definition of “character reasons” as a reason for visa cancellation. The new rule, Ministerial Direction 90, focuses on family violence and means some Australia visa holders who were previously ok to stay, could have their visas cancelled.
How Does It Work?
Section 501 of the Migration Act 1958 says the Australian Government can cancel a person’s visa if that person does not sufficiently meet the "character test". The character test was previously dictated by Direction 79 which said you would most likely fail the character test if you had a "substantial criminal record", ie. a sentence of imprisonment of 12 months or over. Direction 90 has changed this further to address the nature of the offences and not just the sentence.
What is Ministerial Direction 90?
The key difference between Ministerial Direction 79 and the updated Ministerial Direction 90 is that Direction 90 explicitly considers family violence, and crimes committed against vulnerable members of society such as the elderly or disabled. Direction 90 says any offence like this is to be taken very seriously when considering whether a person ought to stay in Australia or not.
Specifically, Direction 90 says the Tribunal must make the following primary considerations in making their decision:
- Protection of the Australian community from criminal or other serious conduct;
- Whether the conduct engaged in constituted family violence;
- The best interests of minor children in Australia; and
- Expectations of the Australian community.
On the face of it, this seems like a good law to have, but the reality is not always so black and white. Typically we see clients for whom certain considerations weigh against them – for example, a lengthy criminal history or a long sentence, but other matters weigh in their favour. Having a long standing spousal relationship with an Australian citizen, for example, or having an Australian child.
What Can I Do If My Visa Is Cancelled?
If your visa has been cancelled under Direction 90, you can appeal to the Administrative Appeals Tribunal to have the decision revoked. The best way to do this is with the advice and assistance of an experienced immigration lawyer, like Work Visa Lawyers.
Work Visa Lawyers will take a detailed history from you to understand what happened in the past, why those things happened, and how things are with you now. It is important to be completely honest with your lawyer and tell them all the details even if they are embarrassing. You don’t want things coming out at the Tribunal that your lawyer didn’t already know about!
A good immigration lawyer will make submissions to the Tribunal about your past, what happened and how the situation arose, and how the Tribunal can be satisfied such events will not occur again. Your lawyer will tell the Tribunal about the good things in your life that weigh in your favour and why although you may have had a troubled past, you are now a person of good character. If the Tribunal is convinced that the positive aspects of your character outweigh the bad things that happened in the past, the decision to cancel your visa may be revoked – which means you can stay in Australia!
What If That Doesn’t Work?
If Your application to revoke the cancellation is not successful, it still may not be the end of the road. You may be able to appeal to the Federal Circuit. Only a lawyer will be able to tell you if you have grounds for appeal, so get legal advice before you try to start anything.
Please get in touch with us if you have had your visa cancelled or if you have received a negative outcome for your revocation request and we can advise what your options are moving forward.
Author:
Lochlan Reef MacNicol, Lawyer & Registered Migration Agent at Work Visa Lawyers
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Disclaimer
This information is correct at the time of publication but is subject to change without notice. All information provided on this page is provided for purely educational purposes and does not constitute legal advice. For advice on your situation, please speak with an Immigration Lawyer or a Registered Migration Agent.
Sources
- Government of Australia, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 08 March 2021, media release, URL:
https://minister.homeaffairs.gov.au/AlexHawke/Pages/strengthened-character-test-to-safeguard-the-Australian-community.aspx. - Government of Australia, Ministerial Direction No. 90, URL: https://www.mia.org.au/documents/item/1795.
- Migration Act 1958 (Cth), URL: Migration Act 1958 (legislation.gov.au).
