The Australian government is set to revise its visa cancellation rules after an independent tribunal restored visas to non-citizens with serious criminal convictions. This has sparked debate about who is responsible for these outcomes and whether the immigration minister’s actions are to blame.
What Changed?
In July 2022, Australian Prime Minister Anthony Albanese and then-New Zealand Prime Minister Jacinda Ardern agreed that individuals with significant ties to Australia should not be deported to countries where they lacked community connections. This led to a new ministerial directive, known as Direction 99, issued by Immigration Minister Andrew Giles in January 2023. This directive emphasized considering the strength, nature, and duration of a person’s ties to Australia, alongside other primary considerations such as community protection, family violence, child interests, and Australian community expectations.
Intended Beneficiaries
According to information obtained by Guardian Australia, the Department of Home Affairs informed Giles that the new directive would primarily benefit non-citizens without serious offenses or family violence convictions. The department tested eight visa cancellation decisions under the new rules. Only two decisions were altered, involving individuals with relatively short sentences who had lived in Australia since childhood and were not involved in family violence. Conversely, decisions involving serious offenses, such as child sexual abuse and murder, remained unchanged.
Real-World Outcomes
Despite the government’s intentions, the independent Administrative Appeals Tribunal (AAT) has restored visas for several non-citizens with serious criminal records. Notable cases include:
- Emmanuel Saki, a Sudanese man later charged with murder after release from immigration detention.
- CHCY, a New Zealand-born man convicted of raping his stepdaughter.
- YVBM, an Iranian-born man with common assault convictions.
- Charles William Davidson, a masseur convicted of 59 offenses, including seven counts of rape.
The AAT’s rationale often centered on the strong ties these individuals had to Australia, sometimes giving these ties “very heavy weight” in their decisions.
Disagreement Over Interpretation
The government contends that the AAT has overly emphasized the duration and strength of ties to Australia, neglecting other critical considerations. Labor’s Murray Watt stated that AAT members were interpreting the directive in a way that was not intended by the government. Minister Giles reiterated that Direction 99 did not reduce the importance of protecting the community or meeting community expectations. However, the opposition argues that the directive itself is flawed, placing too much weight on the residency duration of non-citizens.
Accountability for Re-Canceling Visas
Home Affairs Department Secretary Stephanie Foster admitted responsibility for not briefing the minister’s office on the AAT’s decisions to restore visas, preventing timely reconsideration for re-cancellation. Foster acknowledged a protocol was in place but was inadequately resourced, leading to delays. This failure, termed “extraordinary” by Shadow Home Affairs Minister James Paterson, was deeply regretted by Foster.
Government Response
In response, Home Affairs Minister Clare O’Neil expressed serious concern over the AAT’s decisions. Immigration Minister Andrew Giles is reviewing about 30 cases, with some visas already re-cancelled. Prime Minister Anthony Albanese announced that Giles would issue a new directive to ensure community protection outweighs other considerations in visa decisions. This move aims to ensure that tribunal members make decisions that better align with community safety priorities.