Direction No. 99 is a Ministerial Direction made under s 499 of the Migration Act 1958. It directs all delegates of the Minister who exercise powers under ss 501, 501A, 501B, and 501C (character-based visa refusal and cancellation) on how to consider and balance the relevant factors. Direction No. 99 replaced Direction No. 90 in April 2021 following concerns about the previous direction's treatment of New Zealand citizens and long-term residents.

The Direction is binding on delegates — they must follow it when exercising discretion under the character provisions. The Direction sets out a two-step framework: first, determine whether the power may be exercised (is the person of bad character?); second, determine whether the power should be exercised (does the public interest in removal outweigh the private interest in remaining?).

Section 499 of the Migration Act empowers the Minister to give written directions to a person exercising powers under the Act. Such directions are binding. Section 501 gives the Minister (or delegate) power to refuse or cancel a visa on character grounds. The combined framework of s 501 + Direction No. 99 governs all character-based decisions.

Direction No. 99 establishes a structured two-stage analysis:

Stage 1 — Primary considerations (given the most weight):

• Protection of the Australian community from criminal or other serious conduct
• Whether visa refusal/cancellation serves as a general deterrent
• The expectations of the Australian community

Stage 2 — Other considerations (also assessed):

• Impact on minor children and other close family members in Australia
• Strength of ties to Australia
• Extent of impediments to return (family, community, language ties to destination country)
• Length of time in Australia
• Best interests of minor children
• Ability to be rehabilitated

Where refusal or cancellation is mandatory (e.g., where a person has been sentenced to 12 months or more imprisonment for a single offence under s 501(3A)), the Direction does not apply to the mandatory cancellation itself — but it does apply where the person seeks revocation of a mandatory cancellation.

Direction No. 99 made two key changes from its predecessor (Direction No. 90): (1) it gave greater weight to hardship where the person arrived in Australia as a child or minor; and (2) it improved the treatment of NZ citizen cases by requiring decision-makers to explicitly consider the person's residential history in Australia since childhood. These changes followed the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 and community concerns about deportations of long-term residents to countries where they had no meaningful connections.

A decision under s 501 that fails to properly apply Direction No. 99 is susceptible to judicial review for jurisdictional error, as the Direction is a mandatory relevant consideration. The Federal Court and Federal Circuit and Family Court have extensive jurisprudence on the proper application of the Direction.