In December 2014, amendments were made to the Migration Act, giving the Minister of Immigration greater power to cancel visas. As a result, the number of visa cancellations in recent months has skyrocketed. In certain situations, a person can face mandatory visa cancellation if they have been convicted of an offence and are serving time in an Australian prison.
In recent months, our office has received a steady flow of enquiries from distraught parents and partners whose loved ones have had their visas cancelled. Most of these clients are currently being held in Immigration Detention. Many a New Zealand citizen has been caught off guard by these provisions, with many not realising they had a visa which could be cancelled.
In defence of the provisions, Minister for Immigration Mr Peter Dutton has staunchly declared:
“Frankly [these criminals] are detracting from the Australian society, not adding to it. They should be removed from our shores as quickly as possible.”
Unintended consequences of the legal provisions
The problem with mandatory visa cancellation is that it doesn’t take into account the individual circumstances of the visa holder, before a decision is made to cancel their visa.
Under the old legislation, where for one reason or another a visa holder was caught by the cancellation provisions, the Department would have to notify the visa holder of their intention to consider cancelling the visa. The visa holder would then have an opportunity to present reasons as to why their visa should not be cancelled.
Under the new provisions, when certain requirements are met, the visa is automatically cancelled and the former visa holder is put into Immigration Detention immediately.
Appeal rights exist, however decisions are slow and whilst the applicants wait for their appeals to be heard, they are held (at tax payers expense) in Immigration Detention.
With an unprecedented number of visa cancellations, the Department is struggling to find room to detain everyone. Increasingly, our clients are being sent to detention facilities such as Christmas Island, which have traditionally been used to house hardened criminals. Thereafter, Serco officials (charged with running the detention facilities) resort to underhanded tactics to trick clients into voluntarily departing the country.
During a recent telephone call with one of my clients on Christmas Island, he informed me that a Detention Officer had told him that he had “finished serving his sentence” and if he just signed a piece of paper, he could “go home” (to New Zealand). Thankfully, my client advised that he would check with his lawyer before signing anything.
What the Detention Officer failed to mention to my client was that there was no such thing as “finishing his sentence”, and had he signed that piece of paper, not only would he be forfeiting his appeal rights (in circumstances where he had young children in Australia and a very strong chance of successfully appealing the mandatory cancellation of his visa), but that he would be banned from Australia forever.
Such tactics might be expected in a corrupt, impoverished nation. We should be ashamed that this sort of behaviour goes on in facilities under Australian control.
At just 21 years of age and below-average intelligence, my client was a soft target. I shudder to think what happens when applicants do not have legal representation, have poor English language skills or other vulnerabilities. How many applicants are tricked, cajoled or frightened into giving up their rights and leaving the country? Furthermore, not every client would be returning to a safe, first-world country such as New Zealand.
The Minister’s declaration that all convicted criminals should be removed from Australia is too simplistic. It fails to take into account the many factors that may have contributed to the offending behaviour, any prospects of rehabilitation an applicant may have, or their ties and contributions to the Australian community.
Keeping a person in Immigration Detention costs taxpayers a lot of money, and may be fruitless in circumstances where a person may successfully appeal their visa cancellation down the track.
My suggestion? Take away mandatory cancellation. If a person is serving a sentence of imprisonment in an Australian custodial institution, then that is where they should remain.
When sentencing a person, the courts takes into account a persons individual circumstances, together with mitigating and non-mitigating factors when determining an appropriate sentence.
If the Department suspects that a person does not meet the character test or such other matters as a may affect a persons right to an Australian visa, then put them on notice that their visa is being considered for cancellation. Give them an opportunity to present reasons why their visa should not be cancelled before making a decision. If the Department is still not satisfied after considering all relevant matters, then by all means, cancel the visa.
Mandatory cancellation may keep an applicant in detention well past the expiration of their original prison sentence and serves no purpose in a civilized country.
Appropriate mechanisms to fairly cancel visas existed under the older legislation. The unintended consequences of the new, draconian legislation outweigh its purported benefits, at taxpayers expense.
If you, or someone you know, has had their visa cancelled then time is of the essence. Contact us today to discuss the options on (07) 3360 0844.