It is no secret that the Minister for Immigration, Citizenship and Multicultural Affairs has been under fire ever since the landmark case of NZYQ v Minister for Immigration & Anor [2023] HCA 37, which ruled that a person cannot be held indefinitely in immigration detention where there is no real prospect of removal.

If there is no real prospect of removal, detention is punitive, and this breaches the Constitution because the Executive has no power to imprison – that is power vested only in the Judiciary.

This was followed by ASF17 v Commonwealth of Australia [2024] HCA 19, which distinguishes from NZYQ in that a person who refuses to cooperate with their removal by not undertaking administrative processes necessary to facilitate their removal, such as by applying for a passport, is not entitled to be released from immigration detention.

Those who have no real prospect of removal must be released from immigration detention and are granted a bridging visa, the ironic subclass 070 – Bridging (Removal Pending) visa, to become a lawful non-citizen. This bridging visa is subject to many stringent conditions.

Of course, those in immigration detention are by definition unlawful non-citizens as defined in section 14 of the Migration Act 1958 (Cth) (“the Act”). Many unlawful non-citizens in immigration detention are there because they have had their visas cancelled pursuant to section 501(3A) of the Act. This section is the mandatory visa cancellation provision for those who have been convicted of a criminal offence and have been sentenced to a term of imprisonment of at least 12 months or more for at least one offence (including life imprisonment) or convicted of a sexual offence involving a child.

Those whose visas have been cancelled can make representations to revoke the cancellation. The current controversy stems from Direction no. 99, which came into effect on 3 March 2023 and after consternation from the New Zealand Prime Minister at the time that NZ citizens were deported to their country of citizenship despite having little or no ties.

Ministerial directions are binding on delegates and Administrative Appeal Tribunal (AAT) members, which is where review applications are made when requests for revocation are refused.

From a Freedom of Information request, between 1 January 2014 and 31 December 2023, 8,200 non-citizens had their visas cancelled under section 501 of the Act and were removed from Australia. More than 10 per cent of those, 888 people, were NZ citizens.

This direction added emphasis to ties to Australia and its interpretation has led AAT members to revoke the cancellation of visas for some offenders that may be deemed unacceptable in today’s societal standards.

In light of this, the Minister has signed off on Direction no. 110, which comes into effect on 21 June 2024, and which will revoke Direction no. 99 on this date.

The main differences with this new direction is inserting two principles:

1. The safety of the Australian Community is the highest priority of the Australian Government, and

2. Certain conduct such as family violence will be considered so serious that any countervailing considerations may be insufficient to warrant revocation.

The other major amendment is when considering the strength, nature and duration of any other ties to the Australian community, reference to giving “considerable weight” to those who were resident in Australia during and since their “formative years, regardless of when their offending commenced and the level of the offending” is removed. Instead, only reference to how long they have resided in Australia, including whether they arrived as a young child will be considered, with less weight if they began offending soon after arriving and more weight if they have spent time contributing positively to the Australian community.

Effectively, the rest of Direction no. 110 remains the same as Direction no. 99.

The Minister is expecting that these amendments will fix the current political crisis on character cancellations of which he has had to exercise his personal powers to cancel 40 visas in the last two weeks.

He will be hoping the Australian public will find this satisfactory and these recent controversies will not be on the public’s mind closer to the next federal election, which must be held by 24 May 2025 at the latest.