Ministerial directions are made pursuant to section 499 of the Migration Act 1958 (Cth) which allows the Minister for Immigration to give written directions to a person or body who has functions or powers under the Act.

An obvious example is where the minister delegates his powers to assess visa applications to approved people, such as an employee of the Department of Home Affairs. The minister can issue a range of directions, such as how certain aspects of a visa application are to be assessed, such as the genuine temporary entrant requirement for student visas, and even the order of consideration of how certain visas are processed, which was recently amended.

Ministerial directions cannot be inconsistent with the Act or the Migration Regulations 1994 (Cth) and any direction can only relate to the performance of functions or the exercise of powers under the Act. They are not law and cannot limit or take away the discretion of the person or body who exercises their powers. Rather they are used to assist in taking into account relevant matters.

Aside from their limitations, ministerial directions are, however, binding and must be followed when lawful.

A controversial ministerial direction relates to visa refusals and cancellations. The controversy stems primarily because it adversely affects New Zealand citizens who may have lived in Australia for much or all of their lives as holders of subclass 444 – Special Category visas. If they, or any other non-citizen in Australia, receive a full-time custodial sentence for an offence against a law of the Commonwealth or State or Territory, their visa is mandatorily cancelled pursuant to section 501(3A)(b) of the Act and they then must request revocation of that cancellation.

The difference between the incoming Direction No 99 which will take effect from 3 March 2023 and the previous Direction No 90 is the addition of a primary consideration, which is: “the strength, nature and duration of ties to Australia.”

This consideration adds several factors for assessment, including:

• The impact of the decision on the non-citizen’s immediate family members in Australia and their right to remain in Australia indefinitely,

• Giving more weight to a non-citizen’s ties to their children who may have the right to remain in Australia indefinitely,

• The strength, duration and nature of family or social links with people who have the right to remain in Australia indefinitely,

• The length of time the non-citizen has resided in Australia and in particular giving considerable weight to: those who have ordinarily resided in Australia during and since their formative years regardless of their level of offending or when their offending commenced; and, any positive contribution to the Australian community.

Conversely, those who did not spend their formative years in Australia will be afforded less weight for their time in Australia.

Some of the above factors are listed in the current direction but is not as important as a primary consideration.

This additional primary consideration addresses the concerns of the above example and is in line with recent media statements made by the prime minister.

There are now five primary considerations:

• protection of the Australian community from criminal or other serious conduct;

• whether the conduct engaged in constituted family violence;

• the strength, nature and duration of ties to Australia

• the best interests of minor children in Australia; and

• expectations of the Australian community.

The new direction also amends consideration of Australia’s non-refoulment obligations but these appear to be more form than factor.

The new direction will provide greater flexibility to address a sore point in Australia-New Zealand relations over the years.