Ministerial Direction 110 - Stricter Changes to Visa Cancellations and Visa Refusals
Ministerial Direction 110, also known as MD-110, is an instruction guide created by the Minister for Immigration for case officers when making decisions to grant, refuse, cancel and revoke visa cancellations.
Australian non-citizens are required to pass the character test to be granted a visa. Even after a visa is granted, non-citizens are liable to visa cancellations if they fail the character test.
When is Ministerial Direction 110 applied?
If a non-citizen does not pass the character test, case officers have the discretion to refuse or cancel their visas. If they are in jail, their visas are mandatorily cancelled but a case officer has the discretion to revoke the cancellation if the non-citizen makes a request. Section 501 of the Migration Act 1958 is the statutory provision that provides for this power, and this is why ‘character’ is referred to in conjunction with ‘section 501’.
Where the discretion to refuse to grant or to cancel a visa is enlivened, the case officer must consider the specific circumstances of the case in deciding whether to exercise that discretion. Therefore, the purpose of MD-110 is to guide case officers in performing functions or exercising powers relating to character. The Tribunal is also bound to comply with MD-110 if decisions made by case officers are appealed to the Administrative Appeals Tribunal (“AAT”).
How are case officers guided by Ministerial Direction 110?
MD-110 provides the principles within which case officers should approach their task. It provides factors that a case officer must consider in making a decision under section 501.
The Ministerial Direction 110 reminds case officers that the safety of the Australian Community is the highest priority of the Australian Government. Being able to come to or remain in Australia is a privilege conferred on non-citizens, and Australia expects that they are, and have been, law-abiding, will respect Australia's law, and will not cause or threaten harm to individuals or the Australian community.
Ministerial Direction 110 (MD-110) explains to case officers that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or visa holders, but it instructs case officers that they may afford a higher level of tolerance of criminal or other serious conduct for those who have lived in the Australian community for most of their life, or from a very young age.
The Direction puts an obligation on case officers to take into account the primary and other considerations relevant to the individual case. For example, this would mean that a non-citizen who is serving 15 years in jail for trafficking cocaine still has a shot of remaining in Australia.
The Direction balances a case officer’s consideration in stating that there are circumstances where the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. The Direction uses family violence as an example of this.
What factors are considered under Ministerial Direction 110?
In making a decision, case officers are required to take into account:
| Primary considerations | Other considerations |
|---|---|
| 1. protection of the Australian community from criminal or other serious conduct; | a. legal consequences of the decision; |
| 2. whether the conduct engaged in constituted family violence; | b. extent of impediments if removed; |
| 3. the strength, nature and duration of ties to Australia; | c. impact on Australian business interests. |
| 4. the best interests of minor children in Australia; | |
| 5. expectations of the Australian community. |
How can you use Ministerial Direction 110?
You or your legal representative may use Ministerial Direction 110 as a structure for your written submission to the Department of Home Affairs. This can be done by combing through each factor, explaining to the case officer why they should place weight in your favour for that particular consideration and supporting your reasons with evidence.
What type of cases fail under Ministerial Direction 110?
A common reason for failing is the lack of evidence that addresses a case officer’s confidence in a non-citizen’s credibility and overall character (which includes having been rehabilitated and reformed). In assessing the primary consideration, “protection of the Australian community from criminal or other serious conduct”, MD-110 directs case officers to assess whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending, which is a very common mistake, particularly with incoming passenger cards. This may also affect the amount of weight a case officer places on other considerations, for example, a case officer may place little weight on a psychology report which states that there is a low risk of re-offending on the basis that the non-citizen has a history of being dishonest, which tips the scale against a non-citizen’s favour.
What type of cases succeed under Ministerial Direction 110?
The Ministerial Direction 110 instructs case officers to consider how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that more weight is given to time the non-citizen has spent contributing positively to the Australian community.
The Direction also guides case officers to consider the impact of the decision on the non-citizen’s immediate family members in Australia. Whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Therefore, a non-citizen might succeed if the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia outweighs their criminal offending. Their chances increase if they have an ongoing relationship with a child in Australia and they play a positive parental role in the child’s life.
Should you engage legal representation?
The strict time constraints associated with responding to the Department are leveraged by having another person assist you with preparing the response. Preparation is far more effective when the person assisting you is an immigration lawyer or registered migration agent because they are equipped with experience, and knowledge, and more importantly, they have a subscription to the department’s internal procedural instructions for case officers.
They will also have accumulated a library of tribunal and court decisions, some of which, you might find inspiration from working out what type of evidence to provide.
How Can Agape Henry Crux Help
Let us share our experience with you and assist you with building a strong presentation. Our lawyers can assist with researching cases with similar circumstances to yours which will help you avoid mistakes made by others.
Presentation is everything and therefore, drafting a technical legal submission is key to effective communication with a decision-maker, as to why your visa should not be refused or cancelled. Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling. You can schedule an appointment with one of our immigration lawyers to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.