Ministerial Direction 110

Introduction

Ministerial Direction No. 110, issued under Section 499 of the Migration Act 1958, marks a significant step in Australia’s approach to handling visa refusals, cancellations, and the revocation of mandatory cancellation decisions under Sections 501 and 501CA of the Act. This directive, effective from June 21, 2024, was enacted by Andrew Giles, the Minister for Immigration, Citizenship and Multicultural Affairs, replacing the preceding Direction No. 99. The new direction intensifies measures against criminal and serious conduct by non-citizens, underscoring the priority of protecting the Australian community.

Historical Context and Political Developments Leading to Ministerial Direction 110

Ministerial Direction 110 did not emerge in a vacuum but is a response to evolving political and social dynamics in Australia. The political landscape over recent years has been increasingly characterized by public concern over the presence of non-citizens involved in criminal activities, particularly violent crimes and family violence. These concerns have been echoed in parliamentary debates, media discourse, and public opinion, leading to calls for more stringent immigration controls.

The Australian Government’s approach to immigration has historically oscillated between open policies aimed at fostering multiculturalism and stricter measures focused on national security and public safety. The increasing incidents of non-citizens engaging in criminal activities created a compelling case for revisiting and tightening the immigration framework. Ministerial Direction 110 reflects this shift, aiming to address the challenges posed by serious misconduct among non-citizens while balancing the humanitarian aspects of immigration policy.

The direction builds on previous frameworks, notably Direction No. 99, but introduces more explicit criteria and considerations for decision-makers. It aligns with the broader political agenda of ensuring that Australia remains a safe and secure environment for its residents while maintaining its reputation as a welcoming nation for law-abiding non-citizens.

Key Components of Ministerial Direction 110

Ministerial Direction 110 provides a detailed guideline for decision-makers concerning visa refusal, cancellation, and revocation based on character grounds. The direction is divided into several sections that outline its objectives, principles, and specific considerations. The following are the key components of the direction:

  1. Objectives and Principles

The primary objective of Ministerial Direction No. 110 is to safeguard the Australian community by regulating the entry and stay of non-citizens based on their character. The direction emphasizes that the privilege of residing in Australia is conditional upon a non-citizen’s compliance with Australian laws and their positive contribution to society. The guiding principles include:

  • Sovereignty: Australia’s right to determine who may enter or remain in the country.
  • Community Safety: Ensuring the safety of the Australian community is the highest priority.
  • Respect for Laws: The expectation that non-citizens will adhere to Australian laws and values.
  • Low Tolerance for Serious Conduct: A stringent stance against criminal or serious conduct, particularly for recent arrivals.
  • Higher Tolerance for Long-Term Residents: Greater consideration for those who have resided in Australia for a significant portion of their lives, provided they do not pose substantial risks.

These principles serve as a framework for decision-makers, guiding them in assessing the character of non-citizens and determining appropriate actions.

  1. Primary Considerations

The direction identifies several primary considerations that must be weighed in decision-making processes under Sections 501 and 501CA:

2.1. Protection of the Australian Community

The protection of the Australian community from harm due to criminal or serious conduct by non-citizens is the foremost consideration. Decision-makers must evaluate:

  • The nature and severity of the non-citizen’s conduct, with an emphasis on crimes involving violence, sexual offences, and family violence.
  • The potential risk to the community if the non-citizen were to re-offend.

The direction categorically views violent crimes, sexual offences, and family violence as particularly serious. It also considers the cumulative impact of repeated offending and any trend of escalating seriousness in the non-citizen’s behaviour.

2.2. Family Violence

Addressing family violence is a crucial aspect of the direction. The Government takes a zero-tolerance approach to non-citizens who engage in family violence, recognizing the profound impact of such conduct on victims and the community. The seriousness of family violence is assessed based on:

  • The frequency and cumulative impact of the violence.
  • The degree of rehabilitation the non-citizen has achieved.
  • Whether the non-citizen has received formal warnings regarding the consequences of further violence.

This consideration underscores the Government’s commitment to protecting victims of family violence and ensuring that perpetrators are held accountable.

2.3. Ties to Australia

The strength, nature, and duration of the non-citizen’s ties to Australia are evaluated to understand their integration into Australian society. Factors include:

  • The non-citizen’s residency history and contributions to the community.
  • The impact of the decision on immediate family members who are Australian citizens or permanent residents.

Decision-makers must consider how deeply the non-citizen’s life is intertwined with Australia and weigh this against the necessity of community protection.

2.4. Best Interests of Minor Children

The best interests of minor children in Australia are a significant consideration, particularly if the non-citizen’s removal or visa cancellation could negatively affect children. Factors include:

  • The emotional and psychological well-being of the children.
  • The non-citizen’s role in the children’s lives, including caregiving responsibilities.

This consideration aims to minimize the adverse impact on children and ensure their welfare is prioritized in decision-making processes.

2.5. Expectations of the Australian Community

The expectations of the Australian community regarding the conduct of non-citizens are also taken into account. The community’s tolerance for risk decreases as the seriousness of potential harm increases. Decision-makers must consider public sentiment and the broader implications of allowing non-citizens with significant character concerns to remain in the country.

  1. Other Considerations

In addition to the primary considerations, the direction requires decision-makers to evaluate other relevant factors, such as the non-citizen’s health, age, and the impact of the decision on business or employment opportunities. These considerations provide a comprehensive view of the individual’s circumstances and the potential consequences of visa decisions.

Implementation and Impact of Ministerial Direction 110

Ministerial Direction 110 is designed to provide a structured and consistent framework for decision-makers, ensuring that visa decisions are made transparently and based on clear guidelines. The implementation of the direction involves:

  • Evidence-Based Decision-Making: Decisions are made using information from reliable and authoritative sources, ensuring that assessments are factual and objective.
  • Procedural Fairness: Non-citizens are given opportunities to respond to character concerns, ensuring that decisions are fair and just.
  • Consistency: The direction promotes uniformity in applying principles and considerations across all cases, reducing variability and potential biases in decision-making.

The impact of Direction 110 is profound, reinforcing Australia’s stance on character-related visa matters and providing a robust mechanism for addressing criminal and serious conduct by non-citizens. The direction’s emphasis on community protection aligns with the broader goal of maintaining national security and public safety.

The direction also reflects a balance between stringent immigration controls and humanitarian considerations. By outlining clear criteria for assessing character concerns and providing opportunities for non-citizens to present their case, the direction ensures that decisions are made with due regard to individual rights and circumstances.

Conclusion

Ministerial Direction 110 represents a pivotal development in Australia‘s immigration policy, prioritizing the protection of the community and the upholding of national interests. The direction’s clear guidelines for decision-makers ensure that visa decisions are made consistently and with a focus on community safety. The emphasis on serious conduct, family violence, and community ties reflects a nuanced approach to managing the complex interplay between individual rights and national security.

The direction’s implementation underscores Australia’s commitment to maintaining a safe and secure environment for its residents while providing a structured and fair process for assessing non-citizens’ character. As Australia continues to navigate the challenges of immigration and community protection, Ministerial Direction 110 stands as a testament to the Government’s resolve to uphold the integrity of its immigration system and safeguard the well-being of its citizens.

Source/References:

  1. DIRECTION NO. 110: https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-110.pdf
  2. Andrew Giles issues replacement to ‘direction 99’ which he says prioritises community safety: https://www.abc.net.au/news/2024-06-07/giles-issues-new-ministerial-direction/103949446
  3. Labor reverses course on ministerial ruling that saw criminals given visas: https://www.theguardian.com/australia-news/article/2024/may/29/government-given-options-to-reform-ministerial-ruling-that-saw-criminals-given-australian-visas-ntwnfb
  4. Migration Act 1958 (Cth) s 499.