Ministerial Direction No 99 revokes Direction 90 given under section 499 of the Migration Act 1958 (the Act) which commenced on 15 April 2021 regarding visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Decision-makers take into account the primary and other considerations relevant to the individual case while deciding whether to refuse or cancel a non-citizen ’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. Primary considerations are generally given greater weight than the other considerations. Under this new Direction 99, the strength, nature and duration of ties to Australia has been added as a primary consideration under Part 2 Section 8, with the effect that these considerations should generally be given more weight by decision-makers. Under Direction 90 these factors were covered under ‘other considerations’ and were not given much weightage by decision makers while deciding an application.
According to new Ministerial Direction 99, the following are regarded as primary considerations in making a decision under section 501(1), 501(2) or 501CA(4)
- protection of the Australian community from criminal or other serious conduct
- whether the conduct engaged in constituted family violence
- the strength, nature and duration of ties to Australia
- the best interests of minor children in Australia
- expectations of the Australian community
The principles under Subsection 5.2 have also been amended with the following paragraph added under 5.2(5):
With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 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.
The new Ministerial Direction No 99 will commence on 3 March 2023.
