Parliament proposes changes to visa cancellations

Extended timeframe to respond to a NOICC; that revocation decisions be expedited; that Directions 65 and 63 be more flexible for NZ citizens and distinguish between serious and non-serious crimes; ‘that victims of crime, or their families, are provided with an opportunity to make a written or oral statement as part of the appeals process’ to the AAT

The Parliament’s Joint Standing Committee on Migration has just published a the report of the inquiry into review processes associated with visa cancellations made on criminal grounds with the following recommendations (emphasis added):

Recommendation 1

1.94 The Committee recommends the Australian Government extend the prescribed timeframe for visa holders in Australia to respond to a notice of intention to cancel issued under Section 116 of the Migration Act 1958 to 14 days.

Recommendation 2

2.97 The Committee recommends that the Department of Home Affairs conduct a review into the resourcing and processes applied to delegate decisionmaking on revocation of mandatory cancellations with a focus on:

  • ensuring that the time taken to make these decisions is reduced to three months, with six months seen as the acceptable maximum; and
  • assessing if there is a need for increased staffing to meet these timeframes.

Recommendation 3

3.61 The Committee recommends that Ministerial Directions 65 and 63 be revised to include a specific provision allowing the historic special immigration status of New Zealand citizens, and its impact on take up of citizenship in Australia, to be a secondary consideration in reviewing character cancellations.

This consideration should not be taken into account if the applicant has ever been convicted of a serious violent or sexual crime, such as rape, murder, sexual offences involving children, aggravated assault or armed robbery

Recommendation 4

3.62 The Committee recommends that all young people from New Zealand who are living permanently in Australia, and who complete at least four years of their higher education in Australia, are eligible to access student loans through the Higher Education Loan Program (HELP).

Recommendation 5

3.117 The Committee recommends that Ministerial Directions 65 and 63 be revised to create a distinction between serious violent offending, and other types of offending, with serious violent crimes more likely to result in visa cancellation or refusal. In line with the Migration Amendment (Strengthening the Character Test) Bill 2018, serious violent crimes includes designated offences such as murder, manslaughter, kidnapping, assault, aggravated burglary, sexual assault, sexual offences involving children, breaching an order made by a court or tribunal for the personal protection of another person, and weapons offences. The revised Ministerial Directions should state that, in cases of serious violent offending:

  • the likelihood of the applicant reoffending is a primary consideration;
  • the impact of the applicant’s crimes on victims is a primary consideration; and
  • the applicant’s strength, nature and duration of ties to Australia is a secondary consideration, and is not to be given more weight than consideration of the impact on victims.

Recommendation 6

3.178 The Committee recommends that the Australian Government regulate to guarantee that victims of crime, or their families, are provided with an opportunity to make a written or oral statement as part of the appeals process in the Administrative Appeals Tribunal, and:

  • where victims/families provide a statement, this evidence should be a primary consideration, especially if the review applicant poses a continuing threat to victims, their families or the Australian community; and
  • where victims/families choose not to provide a statement, the impact on victims should be a secondary consideration.

Disclaimer: the above is a mere extract of an report. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au