Australia is a nation built on migration with over 7.5 million migrants coming to call Australia home since 1945. These rich and diverse diaspora contribute to the vibrant, productive multicultural society we enjoy today. We are also a welcoming nation. People from all around the globe come to Australia to study, to work, to explore our beautiful country, to visit family and friends and, in some cases, to seek Australia’s protection.
While the vast majority are law abiding, some migrants and visitors to Australia may commit crimes. When these crimes are of a serious nature, it is appropriate that the person’s right to remain in Australia be reconsidered.
The Labor Members of the Joint Standing Committee on Migration, Maria Vamvakinou MP, the Hon Shayne Neumann MP, Steve Georganas MP and Senator the Hon Kristina Keneally take seriously the government’s responsibility to promote the safety and security of all Australians.
In line with this, Labor Members strongly support the character provisions contained in Sections 501 and 116 of the Migration Act 1958 (Cth). These laws provide a process for removing non-citizens whose actions and character pose a threat to safety and security.
However, these provisions must be applied responsibly. The decision to cancel a person’s visa on character grounds may alter their life profoundly, as well as the lives of their loved ones, and is generally permanent.
These decisions should be made with due consideration to the circumstances of the offender, to the rule of law and Australia’s human rights obligations, and be subject to appropriate checks and balances.
Labor Members believe that the availability of merits review in the Administrative Appeals Tribunal makes the visa cancellations regime fairer and more robust. Merits review is fast and efficient, and reduces the burden on the courts through decreasing the need for judicial review. We are encouraged that this report made similar findings and did not recommend curtailing the AAT’s role in reviewing character cancellations.
Labor Members support Recommendations 1, 2 and 4.
Impact of visa cancellations on New Zealand citizens
Labor Members agree that the historic special migration status of New Zealanders in Australia has left this cohort vulnerable to visa cancellation and resulted in New Zealanders being over-represented in cancellation statistics.
Evidence provided by the New Zealand High Commissioner, Oz Kiwi and others was compelling. Over half of all visa cancellation cases are New Zealanders and New Zealanders make up 13 per cent of those in immigration detention.
Labor Members support the intent of Recommendation 3, which seeks to ensure that special migration arrangements that have existed between Australia and New Zealand can be considered in the visa cancellations process. However, we believe the issue requires a more thorough examination. As such, Labor Members dissent from Recommendation 3.
Crimes of violence
Recommendation 5 proposes revising Ministerial Directions 65 and 63 to create a ‘two-tiered’ approach to decision-making, based on the nature of the crime/s committed. Specifically, the Committee is proposing to distinguish between violent and non-violent crimes, with the aim of ensuring violent offenders are more likely to be deported.
The definition of violent crimes that the Committee proposes is drawn from the Migration Amendment (Strengthening the Character Test) Bill 2018, introduced to Parliament in October 2018. Labor does not support this Bill.
The Bill seeks to broaden the grounds for cancellation, capturing a set of ‘designated offences’, including: making threats of violence, breaching an apprehended violence order or possessing a weapon. Persons convicted of any of these designated offences would be deemed to have failed the character test, regardless of the sentence imposed.
Labor Members share the concerns raised by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (JCHR) about this Bill.
The Scrutiny Committee was concerned that the legislation may ‘unduly trespass on personal rights and liberties’ by setting the bar too low. It pointed out that under the proposed legislation a permanent resident that had lived in Australia for 20 years could face deportation for carrying pepper spray.
The JCHR found that the Bill was likely to be incompatible with a number of Australia’s human rights obligations, including: the right to non-refoulement, the right to liberty, the rights of the family, and the rights of the child. The JCHR requested a response to these concerns from the relevant ministers.
Labor Members agree with the Scrutiny Committee’s assessment that existing legislation already provides ‘broad discretionary powers’, and gives significant scope for removing non-citizens who pose a threat.
In addition, we question the appropriateness of dictating to decision-makers that the category of crimes committed should trump other factors that weigh into the decision.
Assessing whether or not to cancel a person’s visa is a complicated task, and decision-makers need to be able to weigh up competing factors, including: the nature and timeline of offending, the likelihood of reoffending, how long the person has been in Australia, whether the person is a refugee or asylum seeker, and potential impacts on family members and dependent children remaining in Australia.
Labor Members dissent from Recommendation 5. However, evidence presented during the inquiry has convinced Labor Members of the need for an independent review into the operation of the character provisions under Ministerial Direction 65 and Ministerial Direction 63.
A flawed approach
The overwhelming majority of evidence presented during the inquiry suggested that the current approach to visa cancellations may have some significant flaws.
Evidence suggested the visa cancellations regime under the current government has resulted in non-citizens being detained for unnecessarily long periods of time and some detained indefinitely, and to deportation for relatively minor crimes or offences committed 20 years ago.
Labor Members do not believe the Committee has given this evidence the consideration it warrants.
Under the previous Ministerial Direction, Direction 55, non-refoulement obligations were a primary consideration. Under the existing Directions, these obligations are secondary, ranked lower than the elusive and hard-to-define ‘expectations of the Australian community’.
The Refugee Council of Australia, the Australian Human Rights Commission, the Visa Cancellations Working Group and many others proposed that non-refoulement should again be made a primary consideration. Labor Members share this view.
The Committee also heard that a number of ‘absorbed persons’ have been deported under the current settings. Absorbed persons are non-citizens that have lived in Australia for most of their lives and may have few or no connections to the country of their birth. Some may not even know they are not a citizen until their visa is cancelled. These people should be treated differently from someone who arrived in Australia six months ago.
We want to be perfectly clear: Labor’s first priority in government is the safety and security of the Australian community. Labor will not hesitate to use the character provisions to remove dangerous criminals who threaten that safety. However, we believe most Australians would have an expectation that a person who grew up here, went to school here, has paid taxes and perhaps raised children here, should be given a fair go.
The existing Ministerial Directions deprioritise the ‘strength, nature and duration of ties’ to Australia by making it a secondary consideration. Labor Members believe this should be reconsidered.
A number of witnesses to the inquiry agreed that an independent review of character cancellation was necessary. The Visa Cancellations Working Group suggested that a review of the operation of the provisions should be led by ‘someone with very good experience in criminal law as well as administrative and federal law’.
David Mann from Refugee Legal proposed that an inquiry should be directed towards ensuring that Australia’s approach to visa cancellation and reviews ‘conforms with the ordinary standards that apply more generally under the Australian legal system’.
Mr Mann said that, in his view, the recent application of the provisions represent a ‘fundamental deviation’ from ordinary standards of the Australian legal system, including the right to a fair hearing, due process and natural justice. These claims require further investigation.
Labor Members recommend that the Australian Government commission an independent review into the impacts of Ministerial Direction 65 and Ministerial Direction 63, to be undertaken by someone with expertise in both criminal and administrative law. The review should look at how these Ministerial Directions have impacted the exercise of discretion in visa cancellation on character grounds, particularly in relation to:
impacts on New Zealand citizens and other heavily-represented nationalities;
impacts on the number of persons detained in immigration detention and the length of time in detention;
Australia’s non-refoulement obligations; and
cancellation and deportation of ‘absorbed persons’.
The findings of the review may be used to inform the drafting of new Ministerial Directions.
Victims of crime
The Committee’s final recommendation, Recommendation 6, proposes introducing a requirement for the AAT to provide victims of crime with an opportunity to make a statement as part of the appeals process.
Labor Members dissent from Recommendation 6 for a number of practical and legal reasons, particularly as it raises questions of constitutionality.
Labor Members understand the deep trauma and hurt that is suffered by many victims of crime and their families. To have your life turned upside down through the reckless or intentional actions of another may lead to feeling unsafe, bereft and grief-stricken. No one should have to carry these scars or shoulder this burden, but sadly too many do.
Members were moved by evidence provided during the inquiry about the impacts of crime on individuals and families, and we extend our deepest sympathies and thank these witnesses for their testimony.
The criminal justice system recognises the important role of victims in the justice process by providing the opportunity for impacts on victims to be considered by the court. Victims are generally given the chance to make a statement at the point where a sentence is determined. This process is well-entrenched and forms an integral part of the criminal justice system.
Merits review is not a criminal justice process. It is not a retrial of the applicant. The applicant has already served a sentence for their crime and has generally been released. The question to be decided through merits review is whether or not the delegate made the right and preferable decision in cancelling the person’s visa, or choosing not to revoke a mandatory cancellation.
In making this decision, the AAT weighs up evidence provided by the applicant, against evidence provided by the Department. The AAT can and does consider victim impact statements if these are provided by the Department as part of its case.
The Committee heard that compelling the AAT to seek further statements from victims at the review stage may be resource-intensive and unworkable considering the strict 84 day timeframe for reviews. More importantly, witnesses from the legal sector suggested that it is likely to be unconstitutional.
Asked to comment on this proposal, the Australian Human Rights Commissioner explained that the AAT does not hold judicial power and is only empowered to consider specific questions, including if the applicant fails or passes the character test, and if the decision made against the applicant was the ‘right and preferable’ decision.
The Commissioner argued that it would be unconstitutional for a tribunal such as the AAT to ‘stray’ from its remit by considering whether a visa holder should be further punished or ‘subject to retribution that the victim might understandably want’.
Legal and regulatory reforms should be evidence-based and legally-sound. Labor Members are not convinced that the Committee’s proposal is either. As such, we cannot support Recommendation 6.
Ms Maria Vamvakinou MPThe Hon Shayne Neumann MP
Mr Steve Georganas MPSenator the Hon Kristina Keneally