High Court Clarifies Application of Direction 90 in Visa Refusals: The Case of Ismail v Minister for Immigration

In the High Court case of Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, the court examined Direction 90, a guideline issued by the Minister to assist in making decisions under Section 501 of the Migration Act 1958. This decision has significant implications for visa refusals or cancellations based on character grounds. The High Court’s unanimous judgment addressed two key aspects:

1. Repetitious Weighing: The court concluded that the decision was not affected by the repetitious weighing of the same issues, and Direction 90 was valid even though it permitted such weighing.
2. Community Expectations: The court evaluated whether the Minister’s delegate considered the weight to give the expectations of the Australian community in light of the plaintiff’s personal circumstances.

Background

The plaintiff, Ismail, had lived in Australia for over a decade and traveled to Lebanon to visit his dying uncle. Upon his return, his Partner Visa had ceased, and he applied for a Resident Return visa. This application was refused under s 501(1) due to failing the ‘character test,’ as he had convictions for driving while disqualified and domestic violence, which constituted ‘family violence’ under Direction 90.

Direction 90

Direction 90 provides a framework for decision-makers when refusing visas on character grounds, dividing considerations into ‘primary’ and ‘other’. Primary considerations include:

1. Community Protection: Assessing the risk to the Australian community from the non-citizen’s conduct.
2. Family Violence: Emphasizing the Government’s serious concerns about family violence.
3. Community Expectations: Reflecting the expectation that non-citizens obey Australian laws.

The delegate considered these factors and concluded that family violence was serious, attributing significant weight to the decision to refuse Ismail’s visa.

Double Counting

Ismail argued that the delegate improperly ‘double counted’ his acts of family violence under multiple considerations. The High Court rejected this, stating that weighing the same facts in different contexts did not constitute illegitimate repetitious weighing.

Community Expectations Consideration

Ismail also argued that the delegate failed to consider his personal circumstances in relation to community expectations. The High Court clarified that decision-makers do not need to attribute personal circumstances to the community’s expectations. Instead, they should follow the Government’s views as articulated in Direction 90. This effectively overrules previous interpretations requiring consideration of personal circumstances.

Conclusion

The Ismail case underscores the complexity of visa decisions based on character grounds and the intricate balance decision-makers must strike under Direction 90. By affirming that repeated consideration of the same facts under different headings does not necessarily constitute an error, the High Court has provided clearer guidance for future cases. This decision reinforces the Government’s stringent stance on family violence and other serious conduct, reflecting broader societal expectations while delineating the boundaries of decision-makers’ discretion.

Chris Honnery’s detailed analysis of this case provides valuable insights into the High Court’s reasoning and its implications for Australian migration law, emphasizing the importance of Direction 90 in guiding visa decisions.

Please click on the link below to read the full article by barrister Chris Honnery

Chris Honnery, ‘The Weight of Expectations: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2’ (8 April 2024) https://www.auspublaw.org/blog/2024/4/the-weight-of-expectations-ismail-v-minister-for-immigration-citizenship-and-multicultural-affairs-2024-hca-2/