Andrew Giles: Tribunal still overturning visa cancellations under minister’s controversial direction 99

Visa cancellations are still being overturned under Immigration Minister Andrew Giles’ controversial direction 99 while he scrambles to issue new guidance.

The Nightly can reveal that the Administrative Appeals Tribunal on Monday set aside a decision to cancel the visa of a Maltese-born man with a long history of offending.

In its ruling, the tribunal cited Kevin Andrew Farrugia’s “strength, nature and duration of ties” to Australia, as well as the “best interests” of his 15-year-old daughter, as the grounds for its decision.

Mr Farrugia was reportedly an associate of notorious drug kingpin Tony Mokbel and had been convicted on more than 40 charges.

The verdict was issued just five days after Mr Giles committed to rewrite the controversial direction 99 amid revelations it was helping dozens of people convicted of horrific crimes, including child rape, escape deportation.

The direction — which Mr Giles issued in January last year amid lobbying from New Zealand — instructed decision-makers to “generally afford a higher level of tolerance” to criminal conduct by foreigners who had spent most of their lives in Australia.

Senior Labor ministers accused the tribunal of not following the “intent” of the direction, resulting in what Mr Giles described as decisions that were “very hard to reconcile with any sense of the expectations of the Australian community”.

The department has promised to alert Mr Giles within 24 hours of tribunal decisions, after admitting it hadn’t told him it was losing the cases.

Mr Giles has promised a new direction will be issued before the end of the week.

Revelations the tribunal is still overturning visa cancellations despite the Government’s new stance will intensify pressure on Anthony Albanese’s under-siege immigration minister.

On Monday, Mr Giles admitted he was wrong to claim drones were being used to track former immigration detainees released after November’s High Court ruling on the NZYQ case.

Shadow immigration minister Dan Tehan criticised the delay in issuing the new direction.

“Andrew Giles still has not issued a new Ministerial Direction to replace the one that he signed, and the harm to community safety continues to grow,” Mr Tehan said.

“Last week the Prime Minister was forced to admit the Giles Direction was seriously flawed but Australians are still waiting for it to be replaced.

“How many more non-citizen criminals will be allowed to remain in Australia because this government is not acting urgently to fix the problem they created?”

The latest tribunal case involved Mr Farrugia, a 51-year-old man who moved from Malta to Australia when he was just 17 months old.

He has been convicted on more than 40 charges, including kidnapping and reckless conduct endangering life, drug trafficking, assault, and firearms possession, and spent more than 12 years in prison.

Mr Farrugia was in jail for firearms possession when his visa was automatically cancelled on July 4, 2023.

In its ruling, the tribunal said it would be “extremely hard” on the man’s long-term partner and 15-year-old daughter to relocate and it was “unlikely” they would follow him if he was deported to Malta.

It was in the best interests of the man’s daughter that he remains in Australia, the tribunal found.

The tribunal said Mr Farrugia posed a “moderate” risk of reoffending.

However, there were a number of “protective factors” which weighed in his favour, including the fact had hadn’t taken drugs or committed an offence since 2019 when he was on bail and in the community with his family.

While Mr Giles has promised the new direction will issued within days, there are question marks over exactly when it will come into force.

A January 2023 department briefing to the minister about direction 99 said it could not come into effect until six weeks after Mr Giles signed it “to ensure procedural fairness” for cases before the AAT.

Since July, the tribunal has overturned visa cancellations in half the section 501 cases it has considered, although AAT registrar Michael Hawkins was unable to say how many of these cases were because of the changed need to consider a person’s links to Australia.

Mr Giles was contacted for comment.