The Australian government has announced it will rewrite visa cancellation rules after the Administrative Appeals Tribunal (AAT) restored visas to non-citizens with serious criminal convictions, including a rapist and a violent offender. The move follows controversy over Ministerial Direction 99, issued in January 2023 by Immigration Minister Andrew Giles, which prioritises a non-citizen's ties to Australia when considering visa cancellation.
Direction 99 was intended to implement a 'common sense' approach agreed between Prime Minister Anthony Albanese and former New Zealand Prime Minister Jacinda Ardern, ensuring people with significant ties to Australia are not deported to countries where they lack connections. However, the government now claims the AAT has misinterpreted the direction, giving excessive weight to community ties over other factors such as community protection and family violence.
Among those who had visas restored are Emmanuel Saki, a Sudanese man later charged with murder; CHCY, a New Zealand-born man convicted of raping his stepdaughter; YVBM, an Iranian-born man with common assault convictions; and Charles William Davidson, a masseur convicted of 59 offences including seven counts of rape. In Davidson's case, the AAT gave 'very heavy weight' to his ties to Australia, as he arrived at age five and spent 95% of his life in the country.
Department of Home Affairs testing found that Direction 99 would not have a 'substantive effect' on serious offenders, with only two of eight test cases changing—both involving relatively low sentences and no family violence. Despite this, the AAT has applied the direction differently, leading to criticism from the Coalition, which argues the government's own direction is at fault.
On Tuesday, Home Affairs Secretary Stephanie Foster admitted the department failed to brief Giles on AAT decisions restoring visas to serious offenders, allowing him to consider re-cancellation. She said a protocol to flag such cases was not adequately resourced, resulting in delays. The government now plans to rewrite the rules to clarify the intended balance between community ties and other considerations.
