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Ministerial Direction (“MD”) 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, was introduced on Friday, 7 June 2024 following “a week of pressure over the failure to deport migrants convicted of violent crimes under Direction 99” states Immigration Minister Andrew Giles.

In this article, our migration team discuss the introduction and implications of Ministerial Direction 110, Highlighting the increased focus on community safety in visa refusal and cancellation decisions under section 501, and the revocation of mandatory visa cancellation under section 501CA.

Ministerial Direction 110

The new Direction aims to place greater priority on the safety of the community in relation to the review of visa cancellations and intends to make the protection of the Australian community the primary factor.

The more specific changes made are listed below:

Item (2) inserted – The safety of the Australian Community is the highest priority.

• Item (5), now (6) – Amended to remove the final sentence. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
• Item (6), now (7) – Amended to remove the final sentence. The inherent nature of conduct such as family violence and other types of conduct/suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the community.
• Item (8)inserted – The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the community.
• Item 7(2) – Amended to include the primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations.
• Item 8.1“Protection of the Australian Community” – Amended to include when considering protection of the community, decision-makers should consider the safety of the Australian community is the highest priority. The Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. As such, decision-makers should have regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the community.
• Item 8.1.1“The Nature and Seriousness of the Conduct” – New 8.1.1(1)(d) inserted to include the impact of the offending on any victims of offending or other conduct and their family, where information is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been offered procedural fairness.
• Previous items 8.3(2),(3),(4) removed and replaced with new 8.3(2) –  Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
  In doing so, decision-makers must have regard to:

1. a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   1.  more weight should be given to time the non-citizen has spent contributing positively to the Australian community
2. b) the strength, duration and nature of any family or links with Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia.

• Item 9(1)(c)– Impact on victims removed.
• Item 9.3 –Impact on victims removed.

MD 99 will be revoked as at the date the new MD 110 commences, on 21 June 2024.

RAMSDEN LAWYERS – HOW WE CAN HELP

Whether you need assistance with a visa application or a visa cancellation, our Migration Division has considerable expertise for both individuals and businesses. We are happy to arrange an obligation-free consultation to assist you in navigating the relevant legislation for your circumstances. Contact us today.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice.  Specific advice should be sought about your circumstances.