New character direction has domestic violence perpetrators in sight…and maybe a few more

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This week, the Minister of Immigration, Citizenship and Multicultural Affairs made known that a new ministerial direction, signed on 20 December 2018 and which came into effect on 28 February 2019, will see visa applicants and visa holders who are domestic violence perpetrators treated more harshly than before.

The minister has the power to make certain directions that must be followed, be that a case officer assessing an application, or an Administrative Appeals Tribunal Member assessing a visa refusal or cancellation. While it is binding, it is technically not law.

Directions have multiple purposes, from assessing genuine students to ordering and prioritising certain visa applications, skilled and family visa applications the most notable. The only curtailing of the minister’s power is that any direction cannot be inconsistent with the Migration Act 1958 (Cth) or Migration Regulations 1994 (Cth).

This direction should come as no surprise considering the government has been on an anti-domestic violence blitz of late, and this additional step is one way of adding to that message.

Direction Number 79 requires decision-makers to consider certain factors when deciding whether to refuse or cancel a visa under section 501 of the Act, which is when a non-citizen has not satisfied the decision-maker they pass the character test, or whether to revoke the mandatory cancellation of visa for not satisfying the character test under section 501CA.

Effectively, the direction:

  • Adds women and children to deemed vulnerable members of society (minors, the elderly, and the disabled) for which any violent or sexual crime committed against the cohort would expect to be denied a visa or have their visa cancelled; and

  • Adds that crimes of a violent nature against women and children are considered very serious regardless of the sentence imposed.

What is interesting is that the terminology does not refer to family violence or domestic violence at all, nor requires that it is a male perpetrator of the violence for it to be deemed serious. Taken at face value, it could be construed that any violence against women and children, perpetrated by anyone, including women and children, will enliven the additional seriousness of the direction.

On the character test, it should be remembered that a previously reported bill still waiting to be passed will increase the number of Australian visas refused and cancelled for non-citizens who are convicted of certain violent crimes or firearm offences. The possibility this legislation will be passed before the next federal election, slated for May, diminishes by the day.