Paul Cutler's Migration Case Law Blog

I realise the new Ministerial Direction 99 commenced on 3 March 2023 and there have been lots of newsletters about it. The most important changes are that long term residents are going to be treated more leniently. This is one area where character cancellations can be very unfair and it’s good to see some reform. The major changes are that:

• the strength, nature and duration of ties to Australia has been added as a primary consideration in paragraph 8;
• Paragraph 5.2(5) has been inserted into the principles to be applied: “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“; and
• the old 8.3 is replaced with a new 9.4.1. The strength, nature and duration of ties to Australia

(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right toremain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b) 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.

Creative commons acknowledgment for the photograph.