Andrew Giles goes in new Direction in effort to save job
Andrew Giles’ hopes of holding on to his job and cleaning up the self-inflicted mess of Direction 99 are set to lie in the hands of the very body that created his latest ministerial firestorm.
Andrew Giles’ hopes of holding on to his job and cleaning up the self-inflicted mess of Direction 99 are set to lie in the hands of the very body that created his latest ministerial firestorm.
The Administrative Appeals Tribunal will begin assessing the visa cancellation cases of non-citizen criminals through the lens of Mr Giles’ new Direction 110 in just over a fortnight, with the AAT’s interpretation of the new guidelines likely to shape whether the embattled Immigration Minister stands any chance of holding on to his portfolio.
The timing of the new direction means there will be at least two weeks of AAT decisions under the new system before federal parliament begins its midwinter break. That break is shaping as the most likely time for Anthony Albanese to reshuffle his cabinet, with Mr Giles – who has endured a horror few months in the immigration portfolio – appearing to be the most vulnerable. The new direction issued by Mr Giles on Friday dramatically scaled back the way the Department of Home Affairs and the AAT will consider a non-citizen criminal’s ties to Australia when weighing whether they should be deported.
The change came after The Australian revealed dozens of instances of offenders – including rapists, drug traffickers, money launderers and repeat domestic violence perpetrators – who had succeeded in having their visas reinstated by the AAT thanks to Mr Giles’ Direction 99, which had elevated the strength, nature and duration of an individual’s ties to Australia to a primary consideration for decision-makers.
The new rules have sparked angst in New Zealand, with Deputy Prime Minister Winston Peters on Friday expressing his “regrets” about the Albanese government’s decision to rewrite the ministerial direction.
Peter Dutton said the changes did not go far enough, warning that Direction 110 would still let criminals remain in the country.
As previously flagged by Mr Giles, the new direction emphasises that community safety is the government’s highest priority. That replaces a line in the previous direction that said that the government was “committed to protecting the Australian community from harm”.
The biggest changes have been made to the contentious “strength, nature and duration of ties to Australia” provision, which had been cited as a major factor in dozens of AAT decisions allowing convicted serious offenders to remain in Australia. While the strength of an individual’s ties will remain a primary consideration under Direction 110, the extent of what can be considered has been significantly denuded.
The previous direction had said that “considerable” weight should be given to the fact that a non-citizen has been residing in Australia during and since their formative years, “regardless” of their level of offending or when that offending began.
The new direction has removed that language, and instead says that decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child.
It says less weight should be given where the non-citizen began offending soon after arriving in Australia, and that more weight should be given to time the non-citizen has spent contributing to the Australian community.
Mr Giles on Friday said the new direction made it clear decisions about visas should be based on common sense and the protection of the community. “I’m taking responsibility for putting in place a direction that sends a clear signal to decision-makers and the Australian community about how they should go about making these decisions,” he said.
Direction 99 and its “strength of ties” primary consideration was introduced following representations by New Zealand’s then-prime minister Jacinda Ardern, who had long expressed her displeasure at the volume of convicted criminals being sent back to New Zealand from Australia.
Mr Peters said it was “not right” that New Zealanders who had lived most of their lives in Australia could be deported, and confirmed his government had been in discussions with Canberra.
“It’s just not right that … people who have no connection to New Zealand are deported to New Zealand,” he said. “It’s just new news about the new ministerial direction. We need to make sure and monitor how that gets implemented.”
Mr Dutton said he feared the new direction would continue to allow serious criminals to keep their visas. “This new Direction 110 … will still give rise to the sort of outcomes that we’ve seen in allowing these people to stay in our community,” he said.
He also questioned why the new direction wasn’t coming in with immediate effect. “I can’t believe that it’s taken this long to make such a minor adjustment,” he said. “The Prime Minister is putting New Zealand citizens and citizens from other countries … who have committed crimes ahead of the interest of victims here in Australia.”
Migration Institute of Australia national president Reuben Saul said the new direction “certainly raises the bar” when trying to have visa cancellations overturned.
“Putting the protection of the Australian community right at the front of the decision-maker’s mind is certainly a shift. It’s the strongest language that we’ve seen in a direction like this,” he said. “It will make it harder for certain applicants to succeed.”
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