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Failing The Character Test Has Just Become A Lot Easier – New Direction 79

11 Mar

 

A new Ministerial Character Direction came into force on 28 February 2019 replacing Direction 65 – It’s called Direction 79.

What does Direction 79 say and do?

Direction 79 prescribes mandatory considerations a decision maker must take into account, when deciding whether to cancel or refuse a visa under the so-called “character provisions” of the Migration Act.

Delegates of the Department of Home Affairs (DHA) who make visa cancellation and refusal decisions under section 501 of the Migration Act (the character provisions), must comply with  Direction 79 when making decisions to cancel or refuse visas (or revoke an automatic visa cancellation) under the relevant section.

A visa holder’s visa may be cancelled or refused under section 501 of the Act if the Minister reasonably suspects that the person doesn’t meet the character test and the visa holder fails to satisfy the Minister that they do in fact pass the character test.

References to Minister are generally also references to delegates who make the decisions on the Minister’s behalf, but the Minister may also cancel a visa personally where he suspects that the person doesn’t meet the character test and the refusal cancellation is in the national interest. Such decisions by the Minister cannot be reviewed by the Administrative Appeals Tribunal.

You will fail the character test if you have:

  • A substantial criminal record
  • A conviction for immigration detention offences
  • An association with persons suspected of engaging in criminal behaviour
  • General past criminal conduct or general conduct which shows that you are not of good character
  • Demonstrated a risk of a particular type of future conduct
  • Been convicted of a sexually based offence against a child
  • Charged with or convicted of serious international crime
  • Been assessed as a risk to security by the Australian Security Intelligence Organisation
  • You have an Interpol notice issued against you

What is a substantial criminal record?

A person has a “substantial criminal record” if they have been:

  • Sentenced to death or life imprisonment
  • sentenced to imprisonment for 12 months or more
  • sentenced to 2 or more terms of imprisonment with a total of these terms is 12 months or more
  • acquitted of an offence on the grounds of an soundness of mind/insanity and detained in institution

Failing the character test does not to lead automatic visa cancellation or visa refusal in most cases however, your visa will be automatically cancelled if you have been sentenced to death or a term of imprisonment of 12 months or more or have been convicted of a sexually based offence involving a child, or you are serving a sentence of imprisonment on a full-time basis.

If I fail the character test, will my visa be cancelled or refused in any event by a case officer?

Your visa may be cancelled or refused depending upon whether the Minister or his delegate makes a decision to cancel or refuse your visa, but a delegate of the Minister must take into account the “considerations” contained in Ministerial Direction 79 before making a decision.

Ministerial Direction 79 must also be taken into account when a delegate of the Minister is determining whether to revoke an automatic cancellation of a visa.

What does Ministerial Direction 79 say?

Direction 79 contains considerations that decision-makers (other than the Minister personally) who are considering cancelling , refusing under section 501, or reviewing such decisions must take into account when making such decisions.

These considerations (divided into primary and other considerations) include:

Primary considerations:

  • Protection of the Australian community from criminal or other serious conduct
  • The best interests of minor children in Australia
  • Expectations of the Australian community

Other considerations

  • International non – refoulement obligations (I.e. obligations not to return an asylum seeker to their country of origin)
  • Strength and duration of the visa holder’s/applicant’s ties to Australia
  • Impact on Australian business interests
  • Impact on victims
  • Extent of impediments if removed from Australia

Primary Consideration – Protection of the Australian Community

The major change in the new Direction 79 is in relation to protection of the Australian community, and what constitutes serious conduct.

When considering the protection of the Australian community, Direction 79 directs decision-makers to give consideration to the nature and seriousness of the  non citizen’s past conduct and the risk posed to the Australian community if further offences are committed or if they engage in serious misconduct.

The previous Direction 65 listed serious conduct as:

  • violent and/or sexual crimes
  • crimes against the elderly and disabled
  • crimes against government officials
  • immigration detention offences, including escaping from detention and any offences committed during an escape

Directions 79 has added “crimes of a violent nature against women or children, regardless of the sentence imposed“.This greatly lowers the bar for visa cancellation and refusal as any crime regarded as violent against women or children, even where a person does not receive a custodial sentence, will result in visa cancellation or refusal, or the failure of the Minister to revoke a cancellation.

The remainder of the serious conduct “items” require the decision-maker to take into account the sentence imposed by the courts for the crimes, the frequency of the offending, whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending.

The new insertion however, does not require the decision-maker to take into account any of the above, simply that the person has been convicted of a crime of a violent nature against a woman or a child.

As Direction 79 is now in force, any “character” issues relating to visa applications or cancellations, must be considered by decision-makers (including Tribunal members) against the new requirement of the Direction.

We anticipate that anyone who has been convicted of e.g. domestic violence, breaches of apprehended violence orders, sexual assault or rape, or any offence against a child (including domestic violence), regardless of sentence, will have their visa cancelled or their application refused.

Unless the visa cancellation is automatic, such actions can be reviewed by the Administrative Appeals Tribunal. However, the timelines for applications for review are extremely tight, and we recommend that if you are subject to such action, you contact an immigration lawyer immediately.