Section 501, which allows for cancellation or refusal of a visa on character grounds, is a critical component of Australia’s migration system. The provisions contained in section 501 allow the Government to protect the community from threats posed by serious criminals and those who would seek to cause harm and disharmony in Australia.
These provisions are working. In 2018 alone over 800 non-citizens had their visas cancelled after failing to pass the character test due to criminal convictions. One hundred of those had been involved in child sex offences or child exploitation,
53 were convicted of domestic violence, 34 were guilty of sex offences and 13 had committed murder. A further 125 were guilty of assault and 56 had served sentences for armed robbery. Australia is a safer place without these people.
Some criminals whose visas have been cancelled, however, have not been removed from Australia. Some have been saved from deportation through appealing the Government’s decision at the Administrative Appeals Tribunal (AAT). These appeals come at a cost to the taxpayer and around 80 per cent of them are either thrown out or affirm the Government’s decision. In around 20 per cent of cases, the AAT has sided with non-citizens and overturned the Department’s decision.
The Committee was asked to assess the efficiency of merits review and we carefully considered the evidence. An 84 day time limit imposed on the AAT in the legislation ensures that reviews are quick and cannot drag out. Compared with judicial review in the courts, merits review in the AAT is a faster and cheaper alternative. The Committee was concerned, however, to see some of the timeframes associated with primary decision-making in the Department of Home Affairs, and believes there may be scope to speed up this part of the process.
While the AAT conducts merits reviews efficiently, its decisions may not always meet the community’s expectations. The AAT’s role in overturning a number of criminal deportations in recent years has not gone unnoticed. Australians rightly look for an explanation when drug dealers, violent criminals and repeat offenders are offered a reprieve by the AAT.
The AAT conducts its merits reviews according to considerations spelled out in Ministerial Direction 65. The three primary considerations are:
the protection of the Australian community;
the best interests of minor children in Australia; and
the expectations of the Australian community.
I believe the Australian community expects that non-citizens – who are guests in Australia – will be removed from Australia if they commit serious crimes. The AAT must take this primary consideration seriously.
Non-citizens who commit crimes such as murder, aggravated assault, rape, sexual offences involving children, and weapons offences must not be allowed to remain in Australia. These people pose an unacceptable threat to our communities and the AAT should not prevent their deportation.
The existing Ministerial Directions are open to interpretation and need to be revised. This report makes a number of recommendations aimed at improving these Directions to ensure the focus of decision-makers remains on protecting the Australian community and meeting its expectations.
If revised as the Committee recommends, the Ministerial Directions would create a stronger distinction between serious violent offending and other kinds of criminal offending, and would ensure that victims of crime are properly considered in the review process.
The Committee heard differing opinions about the role of victims in the appeals process. I was not persuaded by arguments that the views of victims have already been considered by the courts, and that victims should play no role at the AAT. I believe that in the past the victim has been forgotten in AAT review processes. The best way to ensure decision-makers take into account the impact on victims is to give victims a voice. In any AAT review process, the views of victims are critical and should be one of the primary considerations, particularly in cases where it is felt that the offender may pose a risk to the victim or their family. I have heard from victims and their families how important this is, and have subsequently made a recommendation ensuring the victim’s voice is heard.
During the inquiry, we heard compelling evidence from the New Zealand High Commissioner, Oz Kiwi and others regarding the disproportionate impact of visa cancellations on New Zealand citizens living in Australia. I was persuaded that the historic special immigration status of New Zealanders should be taken into account by decision-makers in relation to cancelling the visas of New Zealanders who have lived in Australia for many years. These factors do not, of course, outweigh the need to protect the Australian community, and New Zealanders who have committed serious violent crimes should still expect to be deported.
Long-term permanent residents of Australia from all countries must understand that they are not protected from possible deportation for criminal activity, regardless of the length of time they have lived in Australia.
Finally, I believe the character cancellation provisions need to be stronger. Important legislation introduced into Parliament late in 2018 seeks to ensure violent offenders can be removed from Australia at the earliest possible opportunity. I urge the Australian government to pass and enact this legislation without delay.