Direction 62 replaced by Direction 72

On 13 September 2016, the Minister for Immigration and Border Protection revoked Direction 62 concerning the order of priority for the consideration and disposal of Family visa applications.

The revocation comes in the face of High Court proceedings listed for final hearing on 7 October 2016, in which Fragomen acts for a UMA client who is challenging the Department of Immigration and Border Protection’s (Department) reliance on Direction 62 to suspend the processing of his family’s partner visa application (Partner Visa Application): S61/2016.

We initially assisted our client obtain a permanent protection visa following his arrival in Australia by boat. Our client was found to be at risk of harm back in Afghanistan due to the assistance he had rendered to US forces following the coalition’s invasion of Afghanistan, with such assistance leading to the Taliban murdering his father and attacking him.

After assisting him to obtain a permanent protection visa, we assisted our client with the preparation and lodgement of a Partner Visa Application for his wife, daughter, and siblings. 

The processing of the Partner Visa Application was then postponed on the basis that Direction 62 prevented the Department from considering the application until our sponsoring UMA client became an Australian citizen.

Pursuant to Direction 62, Family visa applications sponsored by non-citizen UMAs were afforded the lowest processing priority.

In summary, our client’s position with respect to Direction 62 is that in order to be a valid direction it had to be read so as to allow departure from its processing priorities in all cases which present relevant special circumstances. In the Department’s view, such departure was not permitted in the case of Family visa applications for which the sponsor was a non-citizen UMA.

Direction 62 has now been replaced by Direction 72.

Under Direction 72, Family visa applications sponsored by non-citizen UMAs continue to be given the lowest priority.  However, the new direction makes it clear that decision makers can depart from this order if relevant special circumstances exist or where processing would otherwise be unreasonably delayed. This ability to depart from the processing order applies to all Family visa application, including those for which the sponsor is a non-citizen UMA. 

For more information about the High Court matter of S61/2016 and new Direction 72, please email [email protected]