Paul Cutler's Migration Case Law Blog
New Direction 99: Visa refusal and cancellation under s 501
A new Ministerial Direction No 99 (visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa) commenced on 3 March 2023. This Direction replaces Direction 90.
Under the old Direction 90 the strength, nature and duration of ties to Australia were considered under other considerations, under this new Direction 99 this has now 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.
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.
I have previously blogged about being an alien by “the barest of threads“. I borrowed that title from an academic paper which looked at the position of Stefan Nystrom (who had lived in Australia since he was four weeks old, but who was nevertheless sent back to Sweden, a country with which he had no connection).
Hopefully the new direction will help some of these long term residents who are effectively “home grown” problems despite their foreign citizenship.
Creative commons acknowledgement for the photograph.
Bar the remedy not the right
The issue of people being held on Manus or Nauru having their applications for medical treatment in Australia denied often receives media coverage. Likewise, there have been a number of cases where these people have made applications to prevent their return to Manus of Nauru. The short version of a long story is that there are several provisions in the Migration Act which are directed towards...
Illegally Detained
It is impossible in the space I allow for a blog post to do justice to the case of AJL20 v Commonwealth [2020] FCA 1305. However, everybody who has ever studied administrative law will know that (at least in Australia) there is no such thing as an unlimited power. ALJ20 is a case about the limits on the power in the Migration Act to detain unlawful non-citizens. ALJ20 is a Syrian national who...
Allegedly a victim of fraud
The activities of the (former) firm S&S Migration are so infamous that the Full Federal Court judgment in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 commences with: "...this is yet another case arising from the carnage left by the fraudulent conduct of S & S Migration." It was not in dispute that the Applicant's visa...
Complete but not clear
The combined effect of section 66(2)(d) of the Migration Act and the associated regulations is that there is a strict (non-extendable) 21 day period in which an application for merits review can be lodged with the AAT. If an application is made outside of that time the AAT is without jurisdiction. While that seems simple enough there are a number of Full Court cases where it has been argued that...