Calls to scrap immigration order after tribunal case

A tribunal's decision not to cancel the visa of a foreign-born national who was found guilty of rape has prompted calls for ministerial immigration directions to be scrapped.

Opposition immigration spokesman Dan Tehan says the coalition will rescind the direction put forward by Immigration Minister Andrew Giles, known as direction 99, on the first day of a future coalition government.

The comments come following reports the Administrative Appeals Tribunal took the direction into account when it decided not to cancel the visa of a New Zealand-born man, known as CHCY, who was found guilty of raping his stepdaughter.

Under direction 99, an offender's links to Australia should be a "primary consideration" as to whether a visa should be cancelled.

The tribunal found the direction was a reason behind not cancelling CHCY's visa, due to the man having ties to Australia.

Mr Tehan said the ministerial direction needed to be scrapped.

"We will, on day one as a priority, rescind that Andrew Giles ministerial direction, if we are elected at the next election," he told reporters in Canberra on Monday.

"What it shows is that ministerial direction is clearly failing.

"I don't think that you could get a worse example, that ministerial direction is clearly failing, and that is why it needs to be rescinded."

In a statement, a government spokeswoman said the appeals tribunal had made the final decision surrounding the case.

"This was a decision of the Administrative Appeals Tribunal to overturn the cancellation of the individual's visa," the spokeswoman said.

"The ministerial direction places a significant emphasis on serious offending and family violence, which needs to be considered in all matters."

Australian Immigration Minister Andrew Giles
Andrew Giles has been under pressure since a court decision that released more than 150 detainees. (Lukas Coch/AAP PHOTOS)

As part of the ministerial direction, the tribunal needs to take into account the protection of the Australian community, whether the criminal conduct constituted as family violence, the best interest of children and the expectations of the community.

While the direction provides guidance for decision-makers in visa cases, it does not direct for a particular decision to be made.

The immigration minister had said on Friday the federal department was examining closely the cases that went before the tribunal.

"We're looking very carefully at all of the matters that come before the AAT to ensure that the integrity of our migration system and community safety is given the highest priority, which it has to have," Mr Giles said.

The immigration minister has been under pressure following the High Court's decision that released more than 150 detainees, after ruling indefinite detention was illegal.

Mr Tehan said the minister needed to explain the reasons why the direction was given.

"We need to hear from him or otherwise the prime minister needs to step in, he needs to rescind this himself, and he needs to ask Andrew Giles to resign," he said.