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https://www.abc.net.au/news/2024-06-07/giles-issues-new-ministerial-direction/103949446
OVERVIEW OF DIRECTIONS 99 AND 110 by VISA Fellow RUSLAN (Ross) AHMADZAI and one of our official sponsors Crystal Migration Training
History and background
Direction 99
Direction 99, under the Migration Act 1958, provides guidelines for decision-makers on visa refusal, cancellation, and revocation of mandatory visa cancellation under sections 501 and 501CA of the Act. It emphasizes protecting the Australian community from individuals who fail the character test, particularly those involved in criminal or serious conduct. Direction 99 outlines primary considerations such as the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community.
Direction 110
Direction 110, which supersedes Direction 99, maintains the same focus on visa refusal, cancellation, and revocation of mandatory visa cancellation under sections 501 and 501CA of the Migration Act 1958. It retains the core principles and primary considerations but introduces refinements and updates to ensure a more robust and clear application process. Direction 110 aims to enhance the safety of the Australian community and provide clearer guidance to decision-makers.
Summary
Direction 110 builds upon and replaces Direction 99 with updates to definitions, primary and other considerations, and decision-making principles. Direction 110 refines the criteria and processes for decision-making to ensure clarity and consistency.
Significant Changes and Their Impact
- Definitions and Interpretations:
Direction 110 introduces additional clarity and updates to definitions, ensuring they are consistent with current legal standards and societal expectations.
- Primary Considerations:
Direction 110 maintains the primary considerations but provides more detailed guidance on their application, including the severity and frequency of conduct and the impact on victims and the community.
- Decision-Making Process:
Direction 110 enhances the decision-making framework with more specific criteria and examples, aiming for greater consistency and transparency in decisions.
- Non-Refoulement Obligations:
While the old direction addressed non-refoulement obligations, it lacked detailed procedural guidance. The new Direction 110 provides more comprehensive guidance on handling non-refoulement claims, ensuring compliance with international obligations and clarity for decision-maker
Impact on Applications Made Under Direction 99
Applications processed under Direction 99 may need reassessment if they fall within the scope of Direction 110. Decision-makers will apply the updated definitions and considerations, which may affect the outcomes of pending or future applications. For example, cases involving non-refoulement claims or detailed assessments of family violence might see different outcomes under the new direction.
| Primary Considerations | Direction 99 | Direction 110 | Analysis of Changes |
|---|---|---|---|
| Protection of the Australian Community | Emphasized the safety of the community from criminal or serious conduct | Maintains this emphasis with added clarity on the types of conduct considered | More detailed guidance on assessing the nature and seriousness of conduct and the risk to the community |
| Family Violence | Considered family violence as a serious concern | Maintains this consideration with a more detailed definition and examples | Provides clearer guidelines on evaluating the seriousness and impact of family violence |
| Strength, Nature, and Duration of Ties | Considered ties to Australia, including family and social links | Retains this consideration with more detailed criteria | Offers more explicit guidance on evaluating the nature, strength, and duration of ties to Australia |
| Best Interests of Minor Children | Emphasized considering the impact on children under 18 years of age | Maintains this emphasis with added detailed factors to consider | Provides a more structured approach to evaluating the best interests of minor children |
| Expectations of the Australian Community | Considered the community’s expectation for non-citizens to obey laws and be of good character | Maintains this consideration with more detailed examples and scenarios | Clarifies community expectations with specific types of conduct that are considered unacceptable |
| Legal Consequences of the Decision | Addressed the legal implications of visa refusal or cancellation | Retains this consideration with more comprehensive guidance on non-refoulement obligations | More detailed instructions on handling legal consequences, particularly in relation to non-refoulement obligations |
| Extent of Impediments if Removed | Considered the challenges faced by non-citizens if removed from Australia | Retains this consideration with more explicit factors to evaluate | Provides a clearer framework for assessing the extent of impediments if the non-citizen is removed |
| Impact on Australian Business Interests | Considered the potential impact on Australian businesses | Retains this consideration | No significant change, but maintains the importance of considering business impacts |
Comparison Table of Differences between Direction 99 vs. Direction 110
Analysis of Changes
- Protection of the Australian Community: Direction 110 provides more explicit guidance on what constitutes serious conduct and how to assess the risk posed by the non-citizen. This change ensures decision-makers can more consistently evaluate threats to community safety.
- Family Violence: Direction 110 expands the definition and provides concrete examples of family violence, offering clearer guidelines for decision-makers. This change aims to enhance the protection of individuals from family violence and ensure consistent application.
- Strength, Nature, and Duration of Ties: Direction 110 includes more detailed criteria for assessing the strength and nature of ties to Australia, which helps decision-makers evaluate these factors more comprehensively.
- Best Interests of Minor Children: The updated direction offers a more structured approach to considering the best interests of minor children, including specific factors that must be evaluated. This change ensures that decisions affecting children are made with greater consistency and thoroughness.
- Expectations of the Australian Community: Direction 110 provides detailed examples and scenarios to clarify the community’s expectations regarding non-citizens’ conduct. This change helps ensure that decision-makers can align their decisions with societal norms and values.
- Legal Consequences of the Decision: The new direction includes more comprehensive guidance on handling non-refoulement obligations and other legal consequences. This change ensures that decisions are legally sound and compliant with international obligations.
- Extent of Impediments if Removed: Direction 110 offers a clearer framework for assessing the challenges faced by non-citizens if removed, ensuring a more thorough evaluation of their circumstances.
- Impact on Australian Business Interests: While this consideration remains largely unchanged, the continued emphasis highlights the importance of considering the economic impact of visa decisions.
Conclusion
Overall, the change aims to better protect the Australian community while ensuring decisions are transparent and consistent with current legal and societal standards.
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