The Impact of Ministerial Direction 110 on Australia's International Law Obligations

Jason Donnelly

doi:doi:10.11648/j.ijls.20250801.16

Research Article |

| Peer-Reviewed

The Impact of Ministerial Direction 110 on Australia's International Law Obligations

Jason Donnelly^*

Published in International Journal of Law and Society (Volume 8, Issue 1)

Received: 6 January 2025 Accepted: 24 January 2025 Published: 20 February 2025

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Abstract

Ministerial Direction 110 (Direction 110), introduced under the Migration Act 1958 (Cth), is a pivotal policy document in Australia that provides guidance for visa refusal and cancellation of non-citizens under sections 501 and 501CA. Direction 110 prioritises the protection of the Australian community and other domestic concerns while relegating international law obligations—such as non-refoulement and human rights protections—to secondary considerations. This article critically examines the implications of this hierarchy of considerations, which reflects Australia’s prioritisation of national security and community safety over its international commitments. The analysis begins with an exploration of the framework established by Direction 110, highlighting its emphasis on domestic priorities, including community protection and expectations of the Australian public. It critiques the relegation of international obligations to a lower tier, arguing that this undermines Australia’s adherence to treaties like the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Such an approach risks breaching fundamental principles of international law and diminishing Australia’s reputation as a global leader in human rights advocacy and the rules-based international order. The article further explores the practical and ethical consequences of Direction 110, noting its potential to create inconsistencies in decision-making and prolonged judicial reviews. These inconsistencies arise from subjective interpretations of the hierarchical framework, particularly in deportation cases involving non-citizens facing serious risks in their home countries. The article concludes by proposing reforms to Direction 110, recommending the elevation of international law obligations to primary considerations. Such changes would align Australia’s domestic policies with its international commitments, reduce legal conflicts, and restore its global reputation. By integrating international obligations more meaningfully into visa decisions, Australia can safeguard its national interests while upholding its longstanding commitment to human rights and international law, strengthening its role as a responsible global actor.

Published in	International Journal of Law and Society (Volume 8, Issue 1)
DOI	10.11648/j.ijls.20250801.16
Page(s)	45-54
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2025. Published by Science Publishing Group

Keywords

Direction 110, Migration Act, Non-refoulement, Community Safety, International Obligations, Hierarchy of Considerations, Human Rights and Judicial Review

1. Introduction

Direction 110, given legal force under the Migration Act 1958 (Cth) (the Migration Act),

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is a pivotal document guiding decision-makers in the visa refusal and cancellation processes under sections 501 and 501CA. Among its many provisions, Direction 110 notably categorises Australia’s international law obligations as an "other consideration" rather than a primary consideration

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. This policy decision has profound implications, not only for the individuals directly affected by these visa determinations

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but also for Australia's broader stance on its international law commitments

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This article argues that by relegating international law obligations to a secondary consideration, Australia risks undermining its credibility and commitment to the international legal framework

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. Such an approach could be perceived as a betrayal of Australia's obligations under international law,

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suggesting that the nation does not take these obligations as seriously as it should. The consequences of this approach extend beyond legal interpretation, potentially eroding Australia’s moral authority on the global stage

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and weakening its position in international diplomacy.

Part 1 explains Direction 110. It emphasises national interests, particularly community safety, while noting that international legal obligations, though acknowledged, are secondary. This prioritisation may lead to conflicts between Australia's domestic policies and its international human rights commitments.

Part 2 critiques Australia’s decision to deprioritise international law under Direction 110. It warns that downgrading obligations like non-refoulement risks undermining Australia’s global reputation, weakening the international human rights framework, and diminishing its influence in global governance, potentially eroding trust in its international leadership.

Part 3 discusses how Direction 110's prioritisation of domestic concerns over international obligations leads to inconsistent decision-making, especially in deportation cases. This inconsistency prompts legal challenges, resulting in prolonged judicial reviews and legal uncertainty. The section underscores the judiciary's critical role in balancing domestic policy with international law, complicating the decision-making process.

Part 4 proposes restructuring Direction 110 to prioritise international law obligations equally with domestic concerns, aligning decisions with Australia’s global commitments. This would require policy changes to make international obligations primary considerations in visa decisions. The reform aims to reduce legal conflicts, improve decision-making consistency, and restore Australia’s reputation as a leader in upholding international law and human rights.

The author employs a doctrinal legal methodology, focusing on a structured analysis of legal principles, statutory provisions, case law, and secondary materials. This "black letter law" approach examines the statutory basis of Direction 110 within the Migration Act, its prioritisation of domestic interests, and the relegation of international law obligations.

Key case law interpreting sections 501 and 501CA is analysed to highlight judicial reasoning and the tension between national priorities and international commitments. Secondary sources, including academic commentary, provide critical context, enriching the discussion on the broader implications for Australia’s legal and moral standing in the international community.

This methodology ensures a rigorous, structured critique of Direction 110 while offering legally grounded reforms to reconcile domestic policies with international obligations, contributing meaningfully to immigration law and human rights discourse.

2. Part I - Background and Legal Framework

2.1. Ministerial Direction 110 and the Migration Act 1958 (Cth)

Direction 110, issued under section 499 of the Migration Act, represents a significant policy tool guiding decision-makers in the Australian immigration system.

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Coming into force on 21 June 2024, Direction 110 replaced its predecessor, Direction 99, to provide updated guidance on the refusal and cancellation of visas under sections 501 and 501CA of the Migration Act.

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This Direction is part of the broader legal framework governing Australia's immigration system, which aims to balance the sovereign right to control borders with adherence to international law and the protection of human rights.

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The primary purpose of Direction 110 is to ensure that decisions regarding visa refusals, cancellations, and revocations are made in alignment with the national interest, particularly concerning the safety and security of the Australian community.

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The Migration Act grants the Minister for Immigration and Multicultural Affairs, as well as delegated decision-makers,

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broad discretionary powers to refuse or cancel visas on character grounds.

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Direction 110 provides the necessary guidance on how these discretionary powers should be exercised.

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In summary, Direction 110 provides comprehensive policy guidance to Commonwealth decision-makers in Australia regarding the deportation or visa refusal of non-citizens assessed as posing an unacceptable risk to the Australian community. As a ministerial directive personally issued by the Minister for Immigration and Multicultural Affairs, Direction 110 carries binding authority, requiring decision-makers to adhere to its provisions and policy directives in the exercise of their discretionary powers.

The Direction covers two primary areas:

1) Visa Refusal and Cancellation Under Section 501.

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Section 501 of the Migration Act allows the Minister or their delegate to refuse or cancel a visa if the non-citizen does not pass the character test. The character test is failed if the non-citizen has a substantial criminal record, is suspected of being involved in criminal conduct, or is deemed to pose a risk to the Australian community.

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2) Revocation of Mandatory Visa Cancellation Under Section 501CA.

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Section 501CA provides for the revocation of mandatory visa cancellations. When a visa is automatically cancelled under section 501(3A) because the visa holder fails the character test, they may request revocation of that cancellation.

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Direction 110 guides decision-makers in considering whether there is another reason, beyond the initial character concerns, to revoke the cancellation and allow the non-citizen to remain in Australia.

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2.2. Hierarchy of Considerations

Direction 110 establishes a clear hierarchy of considerations that decision-makers must take into account when exercising their discretion under sections 501 and 501CA.

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This hierarchy ensures that certain factors are prioritised over others,

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reflecting the Australian Government’s policy objectives.

The primary considerations are as follows:

1) Protection of the Australian Community. This is the foremost consideration and involves assessing the risk posed by the non-citizen to the community, particularly in terms of the nature and seriousness of their conduct. It also involves examining the specific actions or behaviours that led to the character concerns, such as criminal activities, involvement in violent conduct, or threats to public safety.

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2) Family Violence. The Australian Government is highly concerned about allowing non-citizens who commit family violence to enter or remain in the country. The seriousness of the offence is assessed based on factors such as the frequency and severity of the violence, rehabilitation efforts, and whether the non-citizen has re-offended after being warned about the consequences.

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3) Strength, Nature, and Duration of Ties to Australia. This factor considers the non-citizen's connections to Australia, including family relationships, community involvement, and length of residence.

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4) Best Interests of Minor Children in Australia. The impact of the decision on any minor children associated with the non-citizen is a critical consideration, with a focus on the welfare and well-being of these children.

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5) Expectations of the Australian Community. This reflects the deemed societal expectation that non-citizens should adhere to Australian laws and values, and that those who fail to do so may not be allowed to remain in the country.

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The other considerations are as follows:

1) Legal Consequences of the Decision. This includes the impact of the decision on the non-citizen's legal status, potential detention, and the possibility of refoulement, where the non-citizen could be returned to a country where they face harm.

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2) Australia’s international law obligations fall under the other heading of ‘Legal consequences of the decision’.

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This is a critical yet secondary consideration under Direction 110, where Australia’s international treaty obligations, including those related to human rights, are considered but are not the primary driver of the decision.

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3) Extent of Impediments if Removed. Decision-makers must assess the potential difficulties a non-citizen may encounter if removed from Australia to their home country, considering factors such as the non-citizen's age, health, language or cultural barriers, and the availability of social, medical, and economic support, in the context of what is generally accessible to other citizens of that country.

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4) Impact on Australian Business Interests. Decision-makers must evaluate the potential impact on Australian business interests if a non-citizen is denied entry or permission to remain in Australia, giving particular consideration to cases where the decision would significantly affect the completion of a major project or the provision of an essential service.

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The hierarchical structure established by Direction 110 implies that while international law obligations are considered, they do not generally hold the same weight as the protection of the Australian community or the expectations of Australian society.

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This prioritisation reflects a policy stance that national security and public safety are paramount, even when these considerations might conflict with international law obligations.

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For instance, a decision-maker might prioritise the protection of the Australian community from a non-citizen with a criminal record over the obligation not to refoul (return) them to a country where they might face persecution or torture.

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While international obligations are acknowledged, they are often outweighed by domestic policy priorities.

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2.3. International Law Obligations Under Scrutiny

Australia’s international law obligations are rooted in a series of treaties and conventions to which the country is a signatory.

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These treaties impose binding commitments on Australia to uphold certain standards of human rights, particularly in the context of immigration and asylum.

Sone of the key international treaties and conventions are as follows:

1) The Refugee Convention (1951) and the 1967 Protocol. These instruments form the cornerstone of international refugee protection.

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The Refugee Convention (1951) and its 1967 Protocol represent the cornerstone of international refugee law, establishing a robust framework for the protection of individuals fleeing persecution.

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Central to this framework is the principle of non-refoulement, codified in Article 33(1) of the Refugee Convention, which prohibits States from expelling or returning individuals to territories where their life or freedom would be threatened due to their race, religion, nationality, membership in a particular social group, or political opinion.

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This principle is reinforced by its recognition as a norm of customary international law, binding on all States regardless of whether they are parties to the Convention.

2) Under international refugee law, States' obligations extend beyond non-refoulement. The Convention requires States to provide refugees with a wide range of protections, including access to courts, education, employment, and public assistance, as well as the right to freedom of movement and the issuance of identity and travel documents. These obligations are designed to ensure that refugees are afforded a dignified existence and the opportunity to rebuild their lives, free from the fear of persecution.

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3) The 1967 Protocol expands the scope of the Refugee Convention by removing geographical and temporal limitations, thereby broadening the range of States’ responsibilities to protect refugees globally. Australia’s ratification of these treaties imposes binding legal obligations that must be integrated into domestic decision-making frameworks, such as Ministerial Direction 110. However, the relegation of non-refoulement to a secondary consideration under Direction 110 risks undermining the breadth of Australia’s commitments under international law. Such an approach disregards the broader duties owed by States, including the obligation to ensure that their policies do not erode the foundational principles of the international refugee protection regime.

4) In this context, it is essential to highlight the full range of State obligations under international refugee law, which extends beyond non-return. These include actively cooperating with international institutions like the UNHCR, ensuring fair and efficient asylum procedures, and promoting durable solutions such as voluntary repatriation, local integration, or resettlement. Failing to uphold these obligations risks creating legal inconsistencies, fostering perceptions of selective adherence to international norms, and undermining the collective framework designed to protect refugees worldwide. States must therefore adopt policies that reflect a holistic understanding of their international obligations to uphold the integrity of the global refugee protection regime.

5) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). This treaty imposes an absolute prohibition on the return of individuals to countries where they are at risk of torture or inhuman or degrading treatment. Australia’s obligations under this Convention are non-derogable, meaning they cannot be suspended, even in times of national emergency.

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6) The International Covenant on Civil and Political Rights (ICCPR) (1966). The ICCPR protects a wide range of civil and political rights, including the right to life, the right to be free from torture and other cruel, inhuman, or degrading treatment, and the right to liberty and security of person. Australia is required to respect and ensure these rights to all individuals within its territory and subject to its jurisdiction, including non-citizens.

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2.4. The Relegation of International Obligations in Direction 110

The decision to categorise international law obligations as an "other consideration" rather than a primary consideration in Direction 110 raises critical questions about Australia’s commitment to these international norms. Although Australia remains legally bound by the treaties it has ratified, the practical application of these obligations in the context of visa decisions is significantly weakened when they are not given primary consideration.

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The tension between domestic policy priorities and international legal obligations is not unique to Australia;

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however, Direction 110 exemplifies a clear prioritisation of national interest, particularly community safety, over international commitments. This approach can lead to situations where Australia’s actions, particularly in the deportation or detention of non-citizens, may conflict with its international obligations.

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For instance, the non-refoulement obligation under the Refugee Convention and the Convention Against Torture is absolute.

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The relegation of these obligations to a secondary status under Direction 110 creates a legal and moral dilemma, wherein decision-makers might prioritise national security concerns over the fundamental human rights of individuals.

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There is a real concern that this approach could set a precedent for other countries, potentially leading to a weakening of the international legal framework for the protection of refugees and other vulnerable individuals.

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Furthermore, Australia’s international reputation as a leader in human rights and a proponent of the rules-based international order could be damaged if it is perceived as selectively adhering to its international obligations.

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Such a perception could have broader diplomatic and geopolitical consequences, affecting Australia’s relationships with other nations and its influence in international forums.

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Direction 110, while designed to protect the Australian community, raises significant legal and ethical issues concerning Australia’s international law obligations. By categorising these obligations as "other considerations," the Direction potentially undermines Australia’s commitment to the international legal framework and raises questions about its adherence to fundamental human rights principles.

The tension between national interest and international obligations remains a critical issue that requires careful consideration

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and, potentially, policy reform to ensure that Australia continues to uphold its international commitments while safeguarding its national interests.

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3. The Legal and Ethical Implications

3.1. Betrayal of International Obligations

The categorisation of international law obligations as secondary considerations under Ministerial Direction 110 represents a significant shift in how Australia approaches its commitments to the global community. By relegating these obligations to a lower priority, the Direction risks undermining the foundational principles of international law, particularly in areas where Australia has long been viewed as a leading advocate.

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One of the most critical international obligations potentially compromised by Direction 110 is the doctrine of non-refoulement. This principle, enshrined in the 1951 Refugee Convention and reinforced by various other international treaties, prohibits the return of individuals to countries where they may face persecution, torture, or other severe human rights abuses.

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Non-refoulement is not just a legal obligation; it is a moral imperative that reflects the global community’s commitment to protecting vulnerable individuals from harm.

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Direction 110’s approach, which treats non-refoulement and other international obligations as secondary to domestic concerns, creates a substantial risk of breaching these commitments. For instance, in scenarios where national security or public safety concerns are prioritised over non-refoulement obligations, decision-makers may be more inclined to deport individuals, even if doing so violates international law.

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This not only puts the individuals in question at grave risk but also places Australia in direct conflict with its international legal obligations.

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3.2. Erosion of Trust in Australia’s Commitment to International Law

The downgrading of international obligations under Direction 110 can be perceived as a betrayal of the trust that the international community places in Australia. When a country signs and ratifies an international treaty, it is not merely a symbolic act; it is a binding commitment to uphold the treaty’s provisions and to act as a responsible member of the global community.

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Australia’s historical role in advocating for human rights and the rule of law has positioned it as a leader in the international arena.

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However, by deprioritising these commitments in favour of domestic policy considerations, Australia risks sending a message that it may prioritise its immediate national interests over its international duties.

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This shift could have far-reaching implications. The international community relies on mutual trust and cooperation to address global challenges, from human rights violations to environmental issues.

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When a nation like Australia appears to sideline its international commitments, it undermines the collective effort to uphold the global rule of law.

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Other countries may begin to question Australia’s reliability as a partner in international agreements and initiatives, potentially leading to a weakening of multilateral cooperation.

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3.3. Undermining the Global Human Rights Framework

International treaties, particularly those related to human rights, form the backbone of the global legal framework designed to protect individuals from state abuses and ensure basic rights and freedoms.

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Australia’s decision to treat these obligations as secondary could be interpreted as an erosion of its commitment to this framework. This is particularly concerning given Australia’s influential role in shaping international human rights norms, both through its participation in treaty negotiations and its advocacy in international forums such as the United Nations.

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By prioritising domestic policy concerns over international obligations, Australia may inadvertently contribute to the weakening of the global human rights framework.

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Other nations, especially those with less robust human rights records, might use Australia’s example to justify their own failures to uphold international law.

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This could lead to a broader trend of states selectively adhering to international obligations, thereby eroding the universality and effectiveness of international human rights protections.

Australia’s reputation as a leader in human rights and international law has been hard-earned over decades of active participation in global governance.

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However, the perception that Australia is downgrading its international law obligations under Direction 110 could significantly damage this reputation. Allies and partners who have long viewed Australia as a consistent advocate for the rule of law

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may begin to question its commitment to these principles. This erosion of trust could lead to strained diplomatic relations, particularly with nations that place a high value on adherence to international norms.

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The implications of this shift in perception are not merely theoretical. In the realm of international relations, reputation and credibility are vital currencies.

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A country that is perceived as selective or inconsistent in its adherence to international law may find itself at a disadvantage in negotiations and diplomatic engagements. For instance, Australia’s influence in advocating for global initiatives

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—such as climate change mitigation, international security, or trade agreements—could be diminished if other countries view its commitment to international law as contingent or opportunistic.

3.4. Practical Implications for International Cooperation

Australia’s perceived selectivity in adhering to international law could have tangible effects on its ability to foster and maintain international cooperation.

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On issues like climate change,

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global security, and trade, Australia has historically played a proactive role, often positioning itself as a mediator or leader in multilateral efforts.

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However, if other nations perceive Australia as willing to subordinate international obligations to domestic priorities, they may be less inclined to engage with or support Australia’s initiatives.

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This could manifest in several ways. In international forums such as the United Nations or the World Trade Organisation, Australia’s proposals or leadership could be met with scepticism or resistance. Other countries might also be less willing to collaborate with Australia on bilateral or multilateral projects, particularly in areas where trust and mutual commitment to international norms are critical. Over time, this could lead to Australia being sidelined in key international negotiations, reducing its ability to shape global policy in ways that align with its national interests.

3.5. Long-Term Consequences for Australia’s Global Influence

The long-term consequences of Australia’s perceived selective adherence to international law could be profound. As global challenges become increasingly complex and interconnected, the ability to influence international norms and policies will be crucial for any nation seeking to protect its interests on the world stage.

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If Australia is seen as inconsistent or untrustworthy in its commitment to international law, its influence in shaping these norms and policies could be significantly weakened.

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Moreover, Australia’s moral authority—its ability to advocate for human rights, democracy, and the rule of law—could be eroded. This authority has been a key asset in Australia’s foreign policy, allowing it to punch above its weight in international affairs.

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A diminished reputation in this area could lead to a loss of soft power, making it more difficult for Australia to achieve its foreign policy objectives.

The legal and ethical implications of categorising international law obligations as secondary under Direction 110 are far-reaching. By potentially compromising its adherence to international commitments, Australia risks betraying the trust of the international community, damaging its global reputation, and weakening its ability to influence international policy. The long-term consequences of this approach could be a diminished role for Australia in the international arena, both in terms of its ability to advocate for global norms and its capacity to protect its national interests on the world stage.

4. The Consequences for Decision-Making and Judicial Review

4.1. Inconsistency in Decision-Making

Direction 110 introduces a hierarchical framework that prioritises certain considerations, such as the protection of the Australian community, over others, including international law obligations.

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While this approach is designed to safeguard national interests,

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it inevitably leads to a potential for inconsistency in decision-making, especially when it comes to balancing domestic priorities against international commitments.

One of the fundamental challenges posed by Direction 110 is the complexity involved in weighing a multitude of factors during the decision-making process. Decision-makers are tasked with evaluating both primary and other considerations, with the former generally taking precedence. However, the subjective nature of this balancing act can lead to significant variability in outcomes.

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For instance, in cases where a non-citizen poses a perceived threat to the community, the decision-maker might prioritise community protection over adherence to international non-refoulement obligations.

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This could result in the deportation of individuals to countries where they face severe harm or severe hardship.

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The potential for inconsistency arises from the fact that different decision-makers may assign different weights to the same factors.

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While one decision-maker might heavily emphasise the importance of upholding international obligations, another might place greater emphasis on domestic security concerns. This subjectivity can lead to divergent outcomes in similar cases, undermining the predictability and fairness of the decision-making process.

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4.2. Impact on Individuals and Legal Challenges

When international law obligations are not given due weight, the decisions made under Direction 110 can have profound and often devastating consequences for the individuals involved.

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For instance, deporting a person to a country where they face a risk of persecution or torture not only breaches international law but also exposes the individual to significant harm.

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Such decisions are likely to be contested through legal channels, leading to a protracted process of judicial review.

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Legal challenges in this context may revolve around the argument that the decision-maker failed to adequately consider Australia’s international obligations.

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These challenges can lead to significant delays in the resolution of cases, prolonging the uncertainty and potential detention of the individuals involved.

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Moreover, the process of judicial review can be costly and resource-intensive, both for the individuals contesting the decision

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and for the government.

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4.3. Reconciliation of Domestic and International Obligations

One of the key issues that the courts must address during judicial review is the reconciliation of domestic policy priorities with international law obligations.

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This reconciliation process can be complex, particularly when the decision under review appears to prioritise domestic considerations, such as national security, over international commitments like non-refoulement.

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The courts may be required to navigate a delicate balance between respecting the executive's discretion in matters of national interest and ensuring that Australia complies with its international obligations.

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This tension can lead to legal uncertainty, as the courts may issue rulings that differ depending on the specifics of the case and the interpretative approach adopted by the judiciary.

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In some cases, the courts may uphold the executive’s decision, emphasising the importance of national security.

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In others, they may overturn the decision, stressing the necessity of adhering to international law.

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This variability in judicial outcomes further exacerbates the inconsistency in decision-making under Direction 110, leading to a lack of clarity for both decision-makers and those affected by their decisions.

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It also underscores the potential for ongoing legal disputes, as each new case may present a fresh opportunity for the courts to reexamine the balance between domestic and international obligations.

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4.4. Judicial Review and the Role of the Courts

The Australian judiciary plays a pivotal role in upholding the rule of law, particularly in the context of decisions made by the executive branch under the Migration Act.

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Judicial review serves as a critical check on the exercise of executive power,

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ensuring that decisions comply with both domestic law and Australia’s international obligations.

When decisions made under Direction 110 are subject to judicial review, the courts scrutinise whether the decision-maker has given adequate consideration to all relevant factors, including international law obligations.

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The courts may assess whether the decision was reasonable,

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whether it took into account all relevant considerations,

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and whether any irrelevant factors were improperly considered.

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If the courts determine that international obligations were not adequately considered, they may overturn the decision.

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This can have several consequences. First, it can lead to delays in the execution of the decision, as the matter is referred back to the decision-maker for reconsideration. Second, it can result in the need for further legal proceedings, as the government may choose to appeal the court’s ruling or seek clarification on how to properly balance competing considerations in future cases.

The role of the courts in interpreting statutes is crucial in this context.

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Australian courts often adhere to the principle that domestic law should, wherever possible, be interpreted consistently with Australia’s international obligations.

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This principle of statutory interpretation means that when a statute is ambiguous or open to multiple interpretations, the courts may favour an interpretation that aligns with international law.

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5. Potential Reforms and Recommendations

5.1. Reevaluating the Hierarchy of Considerations

Direction 110 currently establishes a hierarchical framework that prioritises domestic concerns, such as the protection of the Australian community, over international law obligations.

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This structure has led to significant ethical and legal concerns, particularly in cases where Australia’s international commitments—such as those under the Refugee Convention and the Convention Against Torture—are relegated to secondary importance.

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To address these issues, one potential reform could involve reevaluating and restructuring this hierarchy of considerations.

A key aspect of this reform would be to elevate international law obligations to the status of primary considerations within the decision-making process. By doing so, international obligations—such as non-refoulement and the protection of human rights—would be given due weight in every decision regarding visa refusals, cancellations, and revocations. This elevation would not necessarily diminish the importance of domestic priorities, but it would ensure that international commitments are not sidelined when they come into conflict with domestic concerns.

Elevating international law obligations to primary considerations would align Australia’s domestic policies more closely with its international commitments, thereby reducing the risk of legal conflicts and potential breaches of international law.

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This approach would also enhance the consistency and fairness of decision-making processes, as decision-makers would be required to consider international obligations on par with domestic concerns, leading to more balanced and legally sound outcomes.

5.2. Implementation Challenges and Legislative Changes

Implementing this reform would likely require a significant shift in policy, and possibly legislative amendments to the Migration Act.

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Such changes could include specific provisions that mandate the consideration of international obligations as primary factors in visa-related decisions.

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This would provide a clear legal basis for decision-makers to prioritise international commitments and ensure that these obligations are consistently upheld.

While the implementation of such reforms may pose short-term challenges—such as the need for legislative debate, potential resistance from stakeholders, and the development of new decision-making guidelines—the long-term benefits would likely outweigh these difficulties. Restoring Australia’s reputation as a country that respects and upholds international law would enhance its standing in the global community, strengthen diplomatic relations, and reinforce its role as a leader in human rights advocacy.

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Moreover, this reform would help prevent future legal challenges and the associated costs and delays that arise when decisions are overturned by the courts due to inadequate consideration of international obligations.

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In the long run, a clear and consistent framework that prioritises international law would contribute to a more robust and ethical immigration system.

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The proposed reforms—reevaluating the hierarchy of considerations in visa decision-offer a comprehensive approach to addressing the concerns raised by Ministerial Direction 110. Elevating international law obligations to primary considerations would ensure that Australia’s domestic policies are aligned with its international commitments, reducing the risk of legal and ethical conflicts.

While this reform may require significant changes to policy and legislation, the long-term benefits of restoring Australia’s reputation as a responsible global actor, protecting human rights, and maintaining the integrity of its legal system are well worth the effort. By implementing these recommendations, Australia can ensure that its immigration policies not only protect the national interest but also uphold the fundamental principles of international law.

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6. Conclusion

The analysis of Direction 110, particularly its treatment of Australia’s international law obligations as secondary considerations, reveals a series of profound legal, ethical, and reputational challenges. By relegating these obligations—such as the principles of non-refoulement and the protection of human rights—to a lower tier of importance, Australia risks undermining its longstanding commitments to the international legal framework. This shift not only threatens the individuals directly affected by visa refusal and cancellation decisions but also poses a broader risk to Australia's international standing and its role as a proponent of human rights and the rule of law.

The prioritisation of national interests, particularly community safety, over international commitments creates a legal and moral tension that is difficult to reconcile within the current framework of Direction 110. The potential for inconsistency in decision-making, as different officials may weigh factors differently, exacerbates this issue, leading to unpredictable and potentially unjust outcomes. Furthermore, the legal challenges that arise from such decisions are likely to be protracted, costly, and detrimental to both individuals and the state, highlighting the need for clearer guidance and a more balanced approach.

To address these concerns, a re-evaluation of the hierarchy of considerations within Direction 110 is imperative. Elevating international law obligations to the status of primary considerations would not only align Australia's domestic policies with its international commitments but also restore its reputation as a responsible and ethical global actor. Such a reform would require a shift in policy, but the long-term benefits—enhancing the consistency and fairness of decision-making, reducing legal conflicts, and upholding Australia's moral authority on the global stage—are substantial.

Ultimately, the integration of international law obligations as primary considerations within the immigration decision-making process would represent a significant step towards ensuring that Australia’s actions on the world stage are consistent with the values and principles it has long championed. By doing so, Australia can safeguard its national interests while maintaining its commitment to the international legal framework, thereby reinforcing its role as a leader in global human rights advocacy and international diplomacy.

Abbreviations

Direction 110	Ministerial Direction 110
ICCPR	The International Covenant on Civil and Political Rights (ICCPR)
Migration Act	Migration Act 1958 (Cth)

Author Contributions

Jason Donnelly is the sole author. The author read and approved the final manuscript.

Conflicts of Interest

The author declares no conflict of interest.

References

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Donnelly, J. (2025). The Impact of Ministerial Direction 110 on Australia's International Law Obligations. International Journal of Law and Society, 8(1), 45-54. https://doi.org/10.11648/j.ijls.20250801.16

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Donnelly, J. The Impact of Ministerial Direction 110 on Australia's International Law Obligations. Int. J. Law Soc. 2025, 8(1), 45-54. doi: 10.11648/j.ijls.20250801.16

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Donnelly J. The Impact of Ministerial Direction 110 on Australia's International Law Obligations. Int J Law Soc. 2025;8(1):45-54. doi: 10.11648/j.ijls.20250801.16

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@article{10.11648/j.ijls.20250801.16,
  author = {Jason Donnelly},
  title = {The Impact of Ministerial Direction 110 on Australia's International Law Obligations
},
  journal = {International Journal of Law and Society},
  volume = {8},
  number = {1},
  pages = {45-54},
  doi = {10.11648/j.ijls.20250801.16},
  url = {https://doi.org/10.11648/j.ijls.20250801.16},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20250801.16},
  abstract = {Ministerial Direction 110 (Direction 110), introduced under the Migration Act 1958 (Cth), is a pivotal policy document in Australia that provides guidance for visa refusal and cancellation of non-citizens under sections 501 and 501CA. Direction 110 prioritises the protection of the Australian community and other domestic concerns while relegating international law obligations—such as non-refoulement and human rights protections—to secondary considerations. This article critically examines the implications of this hierarchy of considerations, which reflects Australia’s prioritisation of national security and community safety over its international commitments. The analysis begins with an exploration of the framework established by Direction 110, highlighting its emphasis on domestic priorities, including community protection and expectations of the Australian public. It critiques the relegation of international obligations to a lower tier, arguing that this undermines Australia’s adherence to treaties like the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Such an approach risks breaching fundamental principles of international law and diminishing Australia’s reputation as a global leader in human rights advocacy and the rules-based international order. The article further explores the practical and ethical consequences of Direction 110, noting its potential to create inconsistencies in decision-making and prolonged judicial reviews. These inconsistencies arise from subjective interpretations of the hierarchical framework, particularly in deportation cases involving non-citizens facing serious risks in their home countries. The article concludes by proposing reforms to Direction 110, recommending the elevation of international law obligations to primary considerations. Such changes would align Australia’s domestic policies with its international commitments, reduce legal conflicts, and restore its global reputation. By integrating international obligations more meaningfully into visa decisions, Australia can safeguard its national interests while upholding its longstanding commitment to human rights and international law, strengthening its role as a responsible global actor.
},
 year = {2025}
}

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TY  - JOUR
T1  - The Impact of Ministerial Direction 110 on Australia's International Law Obligations

AU  - Jason Donnelly
Y1  - 2025/02/20
PY  - 2025
N1  - https://doi.org/10.11648/j.ijls.20250801.16
DO  - 10.11648/j.ijls.20250801.16
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 45
EP  - 54
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20250801.16
AB  - Ministerial Direction 110 (Direction 110), introduced under the Migration Act 1958 (Cth), is a pivotal policy document in Australia that provides guidance for visa refusal and cancellation of non-citizens under sections 501 and 501CA. Direction 110 prioritises the protection of the Australian community and other domestic concerns while relegating international law obligations—such as non-refoulement and human rights protections—to secondary considerations. This article critically examines the implications of this hierarchy of considerations, which reflects Australia’s prioritisation of national security and community safety over its international commitments. The analysis begins with an exploration of the framework established by Direction 110, highlighting its emphasis on domestic priorities, including community protection and expectations of the Australian public. It critiques the relegation of international obligations to a lower tier, arguing that this undermines Australia’s adherence to treaties like the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Such an approach risks breaching fundamental principles of international law and diminishing Australia’s reputation as a global leader in human rights advocacy and the rules-based international order. The article further explores the practical and ethical consequences of Direction 110, noting its potential to create inconsistencies in decision-making and prolonged judicial reviews. These inconsistencies arise from subjective interpretations of the hierarchical framework, particularly in deportation cases involving non-citizens facing serious risks in their home countries. The article concludes by proposing reforms to Direction 110, recommending the elevation of international law obligations to primary considerations. Such changes would align Australia’s domestic policies with its international commitments, reduce legal conflicts, and restore its global reputation. By integrating international obligations more meaningfully into visa decisions, Australia can safeguard its national interests while upholding its longstanding commitment to human rights and international law, strengthening its role as a responsible global actor.

VL  - 8
IS  - 1
ER  -

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Jason Donnelly

School of Law, Western Sydney University, Sydney, Australia

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http://orcid.org/0000-0003-0243-1202

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Donnelly, J. (2025). The Impact of Ministerial Direction 110 on Australia's International Law Obligations. International Journal of Law and Society, 8(1), 45-54. https://doi.org/10.11648/j.ijls.20250801.16

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ACS Style

Donnelly, J. The Impact of Ministerial Direction 110 on Australia's International Law Obligations. Int. J. Law Soc. 2025, 8(1), 45-54. doi: 10.11648/j.ijls.20250801.16

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AMA Style

Donnelly J. The Impact of Ministerial Direction 110 on Australia's International Law Obligations. Int J Law Soc. 2025;8(1):45-54. doi: 10.11648/j.ijls.20250801.16

Copy | Download

@article{10.11648/j.ijls.20250801.16,
  author = {Jason Donnelly},
  title = {The Impact of Ministerial Direction 110 on Australia's International Law Obligations
},
  journal = {International Journal of Law and Society},
  volume = {8},
  number = {1},
  pages = {45-54},
  doi = {10.11648/j.ijls.20250801.16},
  url = {https://doi.org/10.11648/j.ijls.20250801.16},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20250801.16},
  abstract = {Ministerial Direction 110 (Direction 110), introduced under the Migration Act 1958 (Cth), is a pivotal policy document in Australia that provides guidance for visa refusal and cancellation of non-citizens under sections 501 and 501CA. Direction 110 prioritises the protection of the Australian community and other domestic concerns while relegating international law obligations—such as non-refoulement and human rights protections—to secondary considerations. This article critically examines the implications of this hierarchy of considerations, which reflects Australia’s prioritisation of national security and community safety over its international commitments. The analysis begins with an exploration of the framework established by Direction 110, highlighting its emphasis on domestic priorities, including community protection and expectations of the Australian public. It critiques the relegation of international obligations to a lower tier, arguing that this undermines Australia’s adherence to treaties like the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Such an approach risks breaching fundamental principles of international law and diminishing Australia’s reputation as a global leader in human rights advocacy and the rules-based international order. The article further explores the practical and ethical consequences of Direction 110, noting its potential to create inconsistencies in decision-making and prolonged judicial reviews. These inconsistencies arise from subjective interpretations of the hierarchical framework, particularly in deportation cases involving non-citizens facing serious risks in their home countries. The article concludes by proposing reforms to Direction 110, recommending the elevation of international law obligations to primary considerations. Such changes would align Australia’s domestic policies with its international commitments, reduce legal conflicts, and restore its global reputation. By integrating international obligations more meaningfully into visa decisions, Australia can safeguard its national interests while upholding its longstanding commitment to human rights and international law, strengthening its role as a responsible global actor.
},
 year = {2025}
}

Copy | Download

TY  - JOUR
T1  - The Impact of Ministerial Direction 110 on Australia's International Law Obligations

AU  - Jason Donnelly
Y1  - 2025/02/20
PY  - 2025
N1  - https://doi.org/10.11648/j.ijls.20250801.16
DO  - 10.11648/j.ijls.20250801.16
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 45
EP  - 54
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20250801.16
AB  - Ministerial Direction 110 (Direction 110), introduced under the Migration Act 1958 (Cth), is a pivotal policy document in Australia that provides guidance for visa refusal and cancellation of non-citizens under sections 501 and 501CA. Direction 110 prioritises the protection of the Australian community and other domestic concerns while relegating international law obligations—such as non-refoulement and human rights protections—to secondary considerations. This article critically examines the implications of this hierarchy of considerations, which reflects Australia’s prioritisation of national security and community safety over its international commitments. The analysis begins with an exploration of the framework established by Direction 110, highlighting its emphasis on domestic priorities, including community protection and expectations of the Australian public. It critiques the relegation of international obligations to a lower tier, arguing that this undermines Australia’s adherence to treaties like the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Such an approach risks breaching fundamental principles of international law and diminishing Australia’s reputation as a global leader in human rights advocacy and the rules-based international order. The article further explores the practical and ethical consequences of Direction 110, noting its potential to create inconsistencies in decision-making and prolonged judicial reviews. These inconsistencies arise from subjective interpretations of the hierarchical framework, particularly in deportation cases involving non-citizens facing serious risks in their home countries. The article concludes by proposing reforms to Direction 110, recommending the elevation of international law obligations to primary considerations. Such changes would align Australia’s domestic policies with its international commitments, reduce legal conflicts, and restore its global reputation. By integrating international obligations more meaningfully into visa decisions, Australia can safeguard its national interests while upholding its longstanding commitment to human rights and international law, strengthening its role as a responsible global actor.

VL  - 8
IS  - 1
ER  -

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