It’s been another week of turmoil for Andrew Giles, the federal immigration minister who has been in weekly headlines since about 150 people were released from immigration detention thanks to a ruling by the High Court.
But it’s a different issue that has led to open questions about Mr Giles’s future, and one that is more of his own making.
Australia has laws that require a non-citizen’s visa to be torn up if they are convicted of a crime carrying a sentence of more than one year.
That has caused tension with New Zealand for years, because some people convicted of violent offences have been deported there, though they may have been Kiwis in name only and spent almost all of their lives in Australia.
What is the minister’s ‘direction 99’?
New Zealand long argued it shouldn’t have to take responsibility for criminals who grew up in Australian society and committed crimes in Australia, and when the Albanese government came to power in 2022 it agreed to introduce a new measure that would ensure that was taken into account when considering whether to cancel a non-citizen’s visa.
That measure is known as ‘ministerial direction 99’, and it’s an order from the immigration minister for the authority that reviews people’s appeals to their visas being cancelled to prioritise in their assessments how long an individual had spent in Australia, and their connections here.
The direction is not an order from Mr Giles for those people to be allowed to stay in Australia — it just guides the tribunal in its thinking and clarifies the government’s expectations.
Specifically, the direction says: “With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age”.
And it says decision-makers must take into account as a “primary consideration” the “strength, nature and duration of ties to Australia”, among other primary factors such as whether the person has convictions related to family violence, the best interests of children in Australia and the general expectations of the Australian community.
The government called that a “common sense approach” to deciding whether to remove New Zealand citizens (and by extension, any other non-citizens being considered for removal).
Why has this blown up now?
Direction 99 has been running since early 2023 without much notice.
But how visa cancellations are reviewed has exploded after one individual was charged with murder just weeks after his visa was reinstated by the AAT.
Twenty-nine-year-old Emmanuel Saki’s visa had been cancelled over an “extensive criminal record”, including choking the mother of one of his two daughters, which carried an 18-month jail term.
But it was reinstated, and in the authority’s decision it cited Mr Giles’ direction 99 as a reason for restoring Saki’s visa.
Since it was reinstated, Saki has been alleged to have murdered a 22-year-old man in Acacia Ridge, in suburban Brisbane.
It has caused an uproar among the opposition, who say the attempt to placate New Zealand has allowed dozens of dangerous criminals who should have been deported to instead remain in Australia.
That was further complicated by the fact that the home affairs department didn’t actually tell the minister as many as 30 people whose visas were cancelled had used direction 99 to convince the AAT they should stay.
Under sustained pressure, Prime Minister Anthony Albanese announced yesterday it would abandon direction 99, and order a new direction to instead say that community safety must be considered the top priority in deciding whether to allow someone to remain in Australia.
Mr Giles said the new direction would “ensure the protection of the community outweighs any other consideration”, which he said had always been the government’s highest priority.
“The revised direction will also strengthen the principles of community safety in the making of decisions, including the impact of the decisions on the victims of crime and their family members, and also strengthen the family violence provisions to reflect the government’s and Australians more broadly commitment to end violence against women and children.”
So is it resolved?
The new direction is intended to ensure fewer people deemed a risk to the community are able to regain their visas and stay in Australia.
But it won’t necessarily solve the government’s problems, as doing so would also likely upset nations like New Zealand.
New Zealand’s Foreign Minister Winston Peters has already urged Australia not to rewrite the direction and make it easier to deport Kiwi criminals.
And with more cases being questioned, separate revelations around the monitoring of released immigration detainees, questions over re-detaining that cohort and the arrivals of a number of boats carrying asylum seekers, there’s plenty of ways for the government’s opponents to apply more pressure.