What Changes Does the Ministerial Direction 110 Create?

In Short

• Ministerial Direction 110 (MD 110) was introduced to address issues from MD 99 regarding visa refusals and cancellations.
• The primary focus is now the protection of the Australian community, with other considerations being secondary.
• MD 110 changes how the strength of ties to Australia is evaluated, removing weight previously given to long-term residents with serious offences.

Tips for Businesses
If you are a business employing or sponsoring foreign nationals, stay informed about MD 110, as it affects visa decisions. Understand that community safety now takes precedence in character assessments. Consult with an immigration lawyer if changes to visa statuses could impact your business or workforce.

Summarise with: ChatGPT Perplexity Microsoft Copilot

---

Table of Contents

• What is a Ministerial Direction?
• What Does MD 110 Say?
• Why Did These Changes Occur?
• Key Takeaways
• Frequently Asked Questions

The Minister for Immigration, Hon. Andrew Giles, has released new instructions for decision-makers at the Department of Home Affairs and the Administrative Appeals Tribunals, dubbed Ministerial Direction 110 (MD 110). MD 110 was introduced on 7 June 2024 and came into force on 21 June 2024. It aims to remedy the problems caused by its predecessor, MD 99.

MD 99 centred around the question of what to do with New Zealand citizens who have spent the majority of their lives as Australian residents, as well as how best to protect Australian citizens. MD 99 was meant to be a correction to MD 90, the originator of the political tension. However, MD 99 did not completely solve the tensions created by MD 90, as MD 110 was introduced just over a year later. This article will provide you with a brief overview of what an MD is, when it is applied, and what the changes brought by MD 110 are.

What is a Ministerial Direction?

A ministerial direction is an official instruction given by a government minister to a public body or organisation that falls under their area of responsibility. It tells the body how to exercise certain powers or perform certain functions.

As the Hon. Andrew Giles is the Minister for Immigration, he can create ministerial directions to the Department of Home Affairs and the Administrative Appeals Tribunal. Specifically, he can instruct their decision-makers on what to consider when deciding on a visa application or revoking a visa currently in place. These instructions must be followed.

MD 110 interacts with four powers of decision-makers under the Migration Act 1958, a:

• visa refusal, under ss 501(1), 501(3);
• visa cancellation, under ss 501(2), 501(3); and
• revocation of a mandatory visa cancellation under s 501CA.

What Does MD 110 Say?

MD 110 tells decision-makers that there are five primary and other considerations to be made when deciding whether to refuse or cancel a visa due to the applicant failing the character assessment. The primary considerations are:

• the protection of the Australian community from criminal or other serious conduct;
• whether the conduct engaged in constituted family violence;
• the strength, nature and duration of ties to Australia;
• the best interest of minor children in Australia; and
• the expectations of the Australian community.

There are two big changes made by MD 110 when compared to MD 99:

1. The first primary consideration, the protection of the Australian community, is to be given greater weight than the other considerations. All four other considerations are to be given equal weight following this.
2. The second change is that the scope of the third primary consideration has been altered. Considerable weight is no longer given to the fact that a non-citizen migrant has been a resident in Australia during their formative years.

Below, we explore these changes further. 

Protecting the Australian Community

MD 110 also broadens the scope of what to consider for the protection of the Australian community. MD 90, 99 and 110 all define this consideration as decision makers “keeping in mind the safety of the Australian community.” Although it must be noted that MD 110 states that this consideration is the highest priority of the Australian Government, decision-makers must now also consider the impact of the crimes on the victim and the victim’s family.

Strength, Nature and Duration of Ties to Australia

This consideration was added in MD 99 and looks at the length of time the resident has lived in Australia and their familial and community relationships. MD 110 limits how decision-makers read this consideration. Previously, decision-makers provided considerable weight to residents who had lived in Australia since early childhood, regardless of when the offences occurred and, more importantly, how serious the offences were. MD 110 has removed this subsection in its entirety. 

Why Did These Changes Occur?

MD 99 and 110 may almost be read in unison as solutions to the problems created by MD 90. The previous Minister for Immigration, Alex Hawke, introduced MD 90, creating a nexus point of tension between Australia and NZ.

MD 90 replaced MD 79 and created stricter controls on foreign nationals who engaged in family and domestic violence. The effect of these controls was that numerous NZ residents who had spent large portions of their lives in Australia were having their visa applications cancelled or revoked, much to the outrage of the NZ Government. 

Hon. Andrew Giles introduced MD 99 at the beginning of January 2023 to remedy this situation. However, MD 99 created its own problems, as it was reported that visa refusals were not occurring efficiently. MD 110 addresses these issues by prioritising the interests of the wider Australian community above all else for the Department of Home Affairs and the Australian Government. This will now be the primary consideration of all decision-makers when cancelling or revoking a visa. 

However, NZ Prime Minister Christopher Luxon has stated that he was disappointed by the new MD.

Key Takeaways

MD 110 was introduced on 7 June 2024 and came into effect on 21 June 2024. The change centred around NZ citizens who have spent the majority of their lives as Australian residents. MD 110 looks to refuse or cancel visas of criminals who have committed family or domestic violence but also gives weight to how long they have lived in Australia. The recent MDs 90, 99 and 110 are the result of political pressure between Australia and NZ. MDs are not definite instruments and may be replaced in future.

If you have any questions about MD 110, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So, call us today on 1800 534 315 or visit our membership page.

Frequently Asked Questions