Author 1: Anne O’Donoghue, Principal at Immigration Solutions Lawyers [email protected]

Author 2: Diane Markantonakis, Paralegal at Immigration Solutions Lawyers [email protected]

Section 501 of Australia’s Migration Act 1958 (Cth) (‘the Act’) is one of the most crucial parts of the Act, as it stipulates that the Minister for Immigration and Citizenship (‘the Minister’) or the Minister’s delegate (‘the Department’) may cancel a visa on ‘character’ grounds. The Minister may cancel a visa on ‘character’ grounds where he or she ‘reasonably suspects’ that the person does not pass the character test and where that person does not satisfy the Minister that they pass the character test.

This power to cancel a visa may be exercised by the Minister or by the Department. The Minister may personally cancel a visa under a further power provided by section 501(3), where he or she reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest.

The Character Test

Section 501 of the Act provides that a person does not pass the character test if they fall within any of the grounds specified in subsections 501(6)(a) to (d). This is based on a substantial criminal record, involvement in certain criminal activities and significant risk of particulars types of future conduct, to name a few.

National Interest

For personal decisions made by the Minister under section 501(3) or the set-aside power at section 501A(3), the process involves an assessment as to whether the Minister:

• reasonably suspects that the non-citizen does not pass the character test; and
• is satisfied that refusal or cancellation is in the national interest.

The Minister may then choose to exercise personal discretion to refuse or cancel the visa.

Decisions made under any of these powers are not reviewable by the AAT, although they may be reviewed by the Federal Court or the High Court in judicial review proceedings. To exercise any powers other than section 501C, the Minister must be satisfied that the refusal or cancellation is ‘in the national interest’. ‘National interest’ is not defined, and it is open to the Minister to determine what the national interest is in relation to each case.

Ministerial Directions 90 and 99

Ministerial Direction No. 99, which came into effect on 3 March 2023, replaces Direction 90 given under section 499 of the Act. Direction 99 amends the primary considerations for decision-makers in relation to visa refusal or cancellation under section 501 and revocation of mandatory visa cancellation under section 501CA. It adds the strength, nature and duration of ties to Australia as a primary consideration under Part 2 Section 8, which should generally be given greater weight. Previously, these were under ‘other considerations’ and given less weight. Under Direction 99, the primary considerations for making a decision are under sections 501(1), 501(2), or 501CA(4).

Direction 99 acknowledges the impact of an individual’s environment and circumstances on their behaviour and seeks to make more nuanced and fair assessments of their character. By taking into further consideration an applicant’s history in Australia, it views each case in a different light, and takes into consideration the impact and interests of the applicant, in the capacity of their ties to Australia and their history in Australia, in addition to the impact and interests of the Australian public.

In summary, Direction 99 represents a substantial change in the way the character test is assessed in Australia and will have a significant impact on visa and citizenship decisions. The new direction, which places a stronger emphasis on the strength, nature and duration of an applicant’s ties to Australia, is expected to result in more equitable and transparent decisions.

Now why is this new Direction 99 so crucial? Well, professionals in the immigration space are optimistic that an increase in compassion will be displayed on behalf of the Minister and their delegates when considering s501, revocations and cancellations in general. By taking into further consideration an Applicant’s history in Australia, it views each case in a different light, and takes into additional consideration the impact and interests of the Applicant in the capacity of their ties to Australia and their history in Australia, in addition to the impact and interests of the Australian public.

New High Court Decision

The case of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor[1] was recently decided in the High Court of Australia.

Recently, two appellants lodged an appeal on the basis that they could not have their visa refusals overturned. They claimed that this was due to a Department of Home Affairs policy, which provided the minister with a role of overriding decisions in ‘unique or exceptional circumstances’ under Section 351(1) of the Migration Act. A majority of the High Court ruled in favour of the appellants and held that the government is not permitted to defer intervention decisions for refused visa applicants[2]. The High Court held that the decisions by departmental officers to decline refer requests for ministerial intervention under Section 351 were invalid, as only the minister was able to personally assess the public interest factors and could not be deferred[3].

What does this mean now? It means applicants who applied for a Ministerial Request, and had their requests rejected by a delegate who did not refer their case to the Minister, will now have the ability to have their cases be reviewed personally by the Minister.

It is crucial for those who have had their visas cancelled – or have been issued an intention to cancel notice – seek legal advice on the basis of their unique circumstances.

[1] [2023] HCA 10.

[2] Anthony Robinson, ‘High Court of Australia – Visa ruling & Ministerial Intervention Cases – INVALID: The Parliament has seen fit to entrust to the minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the tribunal’, AR Law, https://www.arlaw.com.au/high-court-rulingministerial-intervention-cases (14 April 2023).

[3] Ibid.