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What is ‘direction 99’ and why is the Immigration Minister under pressure to resign?

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Immigration Minister Andrew Giles is reviewing 'Direction 99', a controversial power that's led to some criminals staying in Australia.
Immigration Minister Andrew Giles is reviewing 'Direction 99', a controversial power that's led to some criminals staying in Australia.

Immigration powers called ‘Direction 99’ had prevented some non-citizens who spent most of their lives in Australia from being deported for committing crimes.

However, some offenders who were allowed to stay in Australia have allegedly gone on to commit other serious offences.

Now, the criminal offenders who aren’t Australian citizens would be removed from the country under proposed Government changes to immigration rules.

Context

Australian immigration law allows for non-citizens’ visas to be cancelled if:

  1. A substantial criminal record has led them to spend 12 months or more in prison, and:
  2. Allowing the person to stay in Australia would pose a further threat to the community, such as through sexual assault or violence.

In 2022, then-New Zealand Prime Minister Jacinda Ardern said this criteria had resulted in many NZ citizens being deported from Australia, despite having spent most of their lives here.

Ardern said there was a “longstanding expectation” that Australia “not deport individuals who have lived in Australia for a long time”.

“There are some who are being deported from Australia who, for all intents and purposes, are Australian. Often [with] zero connection to New Zealand, sometimes not even stepped foot there,” Ardern said.

Following these concerns, the Federal Government implemented Direction 99 — a measure allowing anyone facing deportation to appeal their forced removal from Australia with the Administrative Appeals Tribunal (AAT).

Direction 99

The AAT conducts independent reviews “of a wide range of administrative decisions made by the Australian Government.”

In the case of Direction 99 appeals, the AAT must look at the nature and duration of a person’s “ties to Australia” when deciding if they can stay in the country.

However, over the past week, it was revealed that the AAT allowed some people who had committed violent, sexual, or drug-related crimes to stay in Australia.

Direction 99 applications

Shadow Immigration Minister Dan Tehan accused the AAT of restoring visas to 35 people he described as “hardened criminals”.

As non-citizens, they faced forced removal from Australia, but successfully appealed deportation under Direction 99.

One of these people, previously jailed for choking a woman, is alleged to have murdered a man in Brisbane last week. Prime Minister Anthony Albanese said he’d also learned the AAT allowed a man with serious drug convictions to stay in Australia, when the previous Coalition Government was in power.

Home Affairs

The Home Affairs Department oversees visa issues.

When an AAT review leads to a non-citizen avoiding deportation, the Department is notified.

It’s then required to inform the Immigration Minister.

However, the Home Affairs Department admitted this week that it failed to inform the Immigration Minister about some AAT decisions to let convicted criminals remain in the country.

AAT failure

Speaking to federal Senators this week, Home Affairs Secretary Stephanie Foster said: “We made a commitment to the Minister to advise him on cases that should be brought to his attention… and we have failed to do that in a timely way”.

Foster added that she “very much” regretted the oversight.

Changing 99

On Wednesday, Prime Minister Anthony Albanese announced Direction 99 would change. He said this was to “ensure that the protection of the community outweighs any other considerations”.

He said: “The only effective way of ensuring [AAT] members are making better decisions is to issue a new revised direction.”

Immigration Minister Andrew Giles said he’s reviewing direction 99, as some recent AAT decisions lacked “common sense”. He also announced an urgent review of 30 visas, and told the ABC seven had already been cancelled.

Opposition

Shadow Home Affairs Minister James Paterson criticised the Government’s handling of the issues surrounding Direction 99. He said any changes to the Minister’s powers need to prioritise “community safety”.

“If you’re a citizen of a foreign country and you commit a crime here while you’re on a visa, your visa should be cancelled, and you should be sent home,” Paterson said.

The Opposition has reiterated its recent calls for Andrew Giles to resign as Immigration Minister.

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