Andrew Giles raised the threshold for ministerial reconsideration of character cancellations, increasing the risk that criminals convicted of serious offences might keep their visas.
Documents released under freedom of information reveal that in March 2023 the then immigration minister approved a home affairs department plan to only send him cases from the administrative appeals tribunal if a non-citizen who won their visa back posed a “very serious ongoing risk”, instead of a “serious risk”.
Guardian Australia understands that change, which contributed to the visa restoration controversy that saw Giles shuffled to the skills and training portfolio, was later overturned by the new home affairs minister, Tony Burke.
The 29 March 2023 submission reveals that Giles was warned that delays of “several months” had developed between the AAT restoring non-citizens’ visas and submissions to him to consider overturning the tribunal.
By September 2022, a backlog of 70 cases for ministerial reconsideration had developed, with a further 450 cases yet to be assessed by the department, it said.
The submission responded to this backlog by proposing to send only more serious cases to the minister, a policy enacted just two months after ministerial direction 99, which instructed the department and AAT to give greater weight to the strength, nature and duration of a non-citizen’s ties to Australia before cancelling their visa.
That direction was repealed and replaced in June after the Coalition attacked Labor over a series of cases in which the AAT restored the visas to people who had been convicted of crimes ranging from common assault to indecent treatment of a child and rape. On 7 June, when Giles made new rules on visa cancellation that emphasised the importance of community protection and impact on victims of crime, he revealed that he had re-cancelled 40 visas since the public controversy.
Throughout that saga, Giles said that visa cancellations had to be guided by the “protection of the Australian community” and “common sense” but acknowledged that “a number of recent AAT decisions have not shown common sense”.
The March 2023 submission noted the minister was given “personal powers” to overturn the independent umpire precisely because “the government is ultimately responsible for ensuring that AAT decisions reflect community standards and expectations”.
The department told Giles that the existing guidelines were drawn up in February 2020 – under the Coalition – and had resulted in about 20% of AAT decisions being sent to the minister for possible reconsideration.
Under the March 2023 rules, cases “where there is a very serious 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 10 years imprisonment” would be sent to Giles.
This replaced the February 2020 rules, in which cases needed only show a “serious risk to the Australian community or an individual” without the need for the risk to be “ongoing” or for offending to be “abhorrent”.
Guardian Australia understands Burke has restored the Coalition’s threshold of “serious risk” instead of “very serious ongoing” risk.
Under the February 2020 rules, cases involving “violent and/or repeated domestic violence offences” were also reconsidered even without serious, ongoing risk.
The March 2023 rules clarified that, in addition to “significant media interest”, “significant victim or community issues” would also qualify as “exceptional circumstances” meriting a ministerial rethink of an AAT decision.
The department explained the new rules would “ensure that only cases that pose the highest levels of risk and are inconsistent with Australian values such that the ‘national interest’ or ‘public interest’ is invoked are considered” by the minister, and would take into account “Australian community values and long-term residence”.
At the height of the ministerial direction 99 furore in May, the home affairs department secretary, Stephanie Foster, took responsibility for failing to brief the minister’s office about AAT decisions.
“We did not adequately resource that function, and it was not being done in a timely way,” Foster told Senate estimates.
“I very much regret that this has happened. Clearly I was not aware that we were failing to meet our obligations.”
Foster said she was “associate secretary, immigration” at the time and it was therefore her “job to know these things”.
The March 2023 submission warned that “it is possible that a non-citizen will reside in the community for several months after their release from detention as a result of a positive AAT decision until a decision is made by the minister personally”.
The submission, which was cleared by an acting assistant secretary, was copied to Foster, the then home affairs minister Clare O’Neil and the then secretary Michael Pezzullo.
The submission said the cases on hand had been “robustly triaged” and the department had identified ways to improve the process “to mitigate against risks” at an earlier stage. If the new rules were endorsed, the current and new caseload would be assessed “against the updated thresholds”, it said.
“Updates will be provided to your office through the weekly character and cancellations meeting on the progress and outcomes of this case load for your visibility.”
A departmental spokesperson said on Tuesday that “community safety is a key principle” of its decision-making framework.
The department said it applied “a risk-based approach … with the intention behind the minister’s personal powers” and processes are “reviewed as appropriate”.
