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.
AAT Procedure
From the time that an application for review is lodged in the AAT to the time it is determined in a hearing is "around 470 days" (or about 15-16 months). There are however, provisions for "priority processing" and for a "fast track decision". These are both separate processes. The guidelines for priority processing are set out in a President's Direction. The requirements for a fast track...
Schedule 3
The general rule when applying for visas onshore is that you need to hold a valid visa to be able to apply for a visa of a different class. One of the exceptions is applications for a partner visas. However, if you don't hold a substantive visa when you apply for your partner visa, you will still need to comply with the schedule 3. That basically means that you have a 28 day period of grace...
Serve or give?
Many of the court decisions about visa cancellation on character grounds are focussed on the reasons for the cancellation. However, once a cancellation decision is made, section 501CA(3) Migration Act requires the Minister to, as soon as practicable after making the decision to “give the person, in the way that the Minister considers appropriate in the circumstances….” notice (and particulars)...
Aliens
Both the Migration Act and the Australian Citizenship Act rely on power to make laws with respect to “naturalisation and aliens” (section 51(xix) of the Constitution). The High Court today (11 February 2020) has handed down a very interesting decision in relation to the question of who is an alien. Both of the Plaintiffs (who were not related to each other) were: born outside of Australia, one...