Andrew Giles’ decision to raise the threshold for ministerial reconsideration of character cancellations increased the risk that criminals convicted of severe offences may retain their visas.
According to documents made available under the Freedom of Information Act, the then-immigration minister approved a plan in March 2023 for the Home Affairs department to only forward cases from the administrative appeals tribunal to him if the non-citizen who obtained their visa back posed a “very serious ongoing risk” as opposed to a “serious risk.”
The 29 March 2023 submission indicates that Giles was informed of “several months” of delays between the AAT’s restoration of non-citizens’ visas and the submissions to him to contemplate overturning the tribunal.
According to the statement, a backlog of 70 cases for ministerial reconsideration had developed by September 2022, and the department had yet to assess an additional 450 cases.
The submission addressed this backlog by suggesting that only the most severe cases be forwarded to the minister.
This policy was implemented two months after ministerial direction 99, which directed the department and AAT to prioritize the strength, nature, and duration of a non-citizen’s connection to Australia before cancelling their visa.
In June, the Coalition attacked Labour over a series of cases in which the AAT restored visas to individuals who had been convicted of offences ranging from common assault to indecent treatment of a child and rape, resulting in the repeal and replacement of that direction.
Since the public controversy, Giles has re-cancelled 40 visas. This revelation was made on June 7, when he implemented new regulations regarding visa cancellation that underscored the significance of community protection and the impact on crime victims.
Giles stated that visa cancellations must be governed by the “protection of the Australian community” and “common sense” throughout the saga. However, he acknowledged that “several recent AAT decisions have not shown common sense.”
The minister was granted “personal powers” to override the independent umpire, as noted in the March 2023 submission, precisely because “the government is ultimately responsible for ensuring that AAT decisions reflect community standards and expectations.”
The department informed Giles that the current guidelines were established in February 2020, during the Coalition era. It has led to approximately 20% of AAT decisions being forwarded to the minister for potential reconsideration.
The March 2023 regulations would refer cases to Giles “where there is a severe ongoing risk to the Australian community based on abhorrent violent, sexual, child sex or family violence offending which generally resulted in a substantial term of over ten years imprisonment.”
This replaced the February 2020 regulations, which required only a “serious risk to the Australian community or an individual” in cases, without the necessity for the risk to be “ongoing” or for the offence to be “abhorrent.”
Even in the absence of a significant, ongoing risk, cases involving “violent and repeated domestic violence offences” were also reconsidered under the February 2020 rules.
In addition to “significant media interest,” the March 2023 rules clarified that “significant victim or community issues” would also qualify as “exceptional circumstances” that would warrant a ministerial reevaluation of an AAT decision.
