On 15 April 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, The Hon Alex Hawke MP, signed into effect a new Ministerial Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Background to the new character test under Ministerial Direction 90
The Migration Act 1958 empowers decision-makers to refuse or cancel a non-citizen’s visa for a variety of reasons. One vital ground on which a visa may be refused or cancelled is where a visa applicant or visa holder fails to meet the ‘character test’ under section 501(6) of the Migration Act 1958.
The new Ministerial Direction 90 provides instructions to decision-makers on how visa refusals and cancellations and revocations of mandatory visa cancellations under the ‘character test’ of section 501(6) should be decided and executed.
This new Direction replaces Ministerial Direction 79, which replaced the previous Ministerial Direction 65 with a new and more stringent character test. One of the overriding principles of these Ministerial Directions is that non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. In recent years these Ministerial Directions have continually expanded the grounds under which the Department may refuse or cancel a visa on character grounds or revoke a mandatory character visa cancellation.
When can a visa be refused or cancelled under Ministerial Direction 90?
In announcing Ministerial Direction 90, Minister Hawke stated that “Family violence and crimes against vulnerable members of the community have no place in Australia and will not be tolerated.”
Accordingly, Ministerial Direction 90 sets a more stringent assessment of the character test for non-citizens applying for a visa to enter or remain in Australia and visa-holders in Australia with a particular emphasis on family violence-related conduct and conduct against vulnerable members of the community such as the elderly.
Ministerial Direction 90 requires decision-makers take into account the following primary considerations in making their decision on whether or not to refuse or cancel a non-citizen’s visa or revoke the mandatory cancellation of a non-citizen’s visa:
- 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.
What are the ‘primary considerations’ for visa seekers under Ministerial Direction 90’s new character test?
Under Ministerial Direction 90 primary considerations categorise a non-citizen’s offending conduct into very serious and/or serious.
What crimes or conduct are categorised as ‘very serious’ under the new character test?
The following crimes or conduct are categorised as very serious:
- Violent and/or sexual crimes;
- Crimes of a violent nature against women and children, regardless of the sentence imposed;
- Acts of family violence, regardless of the sentence imposed.
What crimes or conduct are categorised as ‘serious’ under the new character test?
The following crimes or conduct are categorised as serious:
- Causing a person to enter into a forced marriage, regardless of whether a conviction was
- Crimes against vulnerable people, such as the disabled, elderly, government representatives or officials;
- Crimes committed in immigration detention during an escape or after an escape from a detention centre; or
- Crimes against humanity, people-trafficking and work exploitation.
It is worthwhile to note that a conviction or a sentence for a ‘very serious’ or ‘serious’ conduct is not necessary for a non-citizen’s offending conduct to be considered ‘very serious’ or ‘serious’ conduct under Ministerial Direction 90.
Ministerial Direction 90 makes it clear that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence. Behaviour or conduct of concern requires decision-makers consider if there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence.
What is family violence?
Family violence is defined by Ministerial Direction 90 as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”, such as:
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Need help with a visa and navigating the new character test under Ministerial Direction 90?
Ministerial Direction 90 means significant changes to the Australian visa process due to the new character test, which can impact on visa applications, even when the applicant does not have a recorded criminal conviction.
If you or a family member are facing a potential visa refusal or are concerned about a cancellation under Ministerial Direction 90’s new character test, Craddock Murray Neumann’s Immigration team are experts in obtaining good outcomes in this complex and everchanging area of law.
Please note that this page states the law as of August 2021. Australian immigration law is complex and changes frequently, and the law may have been changed since this article was published.