May 28, 2024
Non-citizens of poor character should not be spared from deportation because of their ties to Australia, the Coalition has argued.
The federal government's approach to character-based deportation has come under scrutiny this week after it emerged that several serious offenders, who would have ordinarily been deported under longstanding deportation practices, had instead been allowed to stay. They include three convicted child sexual abusers and one man who was charged with murder earlier this month.
The reason is a directive issued by immigration minister Andrew Giles in early 2023, which allowed criminal offenders to escape visa cancellation if they could demonstrate longstanding ties to Australia.
The motive was to stop the practice of deporting people born in New Zealand who had lived in Australia for decades, often since childhood, but were not Australian citizens – a practice which had long angered the New Zealand government.
Mr Giles' direction (called "ministerial direction 99") was that decision-makers in his department should show a greater level of "tolerance" for even serious offences if the non-citizen has "lived in the Australian community for most of their life, or from a very young age", or could demonstrate some other connection to Australia such as having children who are Australian citizens.
Last week, it emerged that Sudanese man Emmanuel Saki, who was recently charged with a murder in Brisbane, had managed to escape deportation thanks to this directive, in part because of his two daughters.
The government had decided to deport Mr Saki, but he successfully overturned that decision at the Administrative Appeals Tribunal (AAT), despite the government's objections.
AAT deputy president Stephen Boyle, who made that decision, used ministerial direction 99 to conclude that "considerable weight" should be given to Mr Saki's Australian ties.
Coalition home affairs spokesperson James Paterson said direction 99 should be revoked.
"Australians are being exposed to very serious violent criminals because the government is too weak to protect them," he said. "There is no barrier except the weakness of the Albanese government to getting rid of these people… direction 99, which [Mr Giles] issued, should be immediately repealed."
On Friday, Mr Giles said he had sought advice about "the implications" of the AAT's decision in Mr Saki's case.
Mr Giles said the directive "put a very high priority on community safety" but that he would "look at the process issues and give careful consideration" to the outcome.
Direction 99 does state that "in some circumstances, the nature of the non-citizen's conduct… may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa".
It lists "family violence" and "violent and/or sexual crimes" as examples of conduct that should weigh heavily against allowing someone to remain.
But despite that language, several others convicted of violent sexual offences have also succeeded in using direction 99 to remain in Australia.
In one case, a New Zealand-born man identified by the AAT as 'CHCY' managed to overturn his cancellation despite a conviction for raping his stepdaughter, a child, while his wife was in hospital giving birth.
CHCY had lived in Australia from the age of 16, arriving in 2004. He was sentenced to just over five years for child sexual abuse, but this was suspended after eight months pending good behaviour, in part because the judge determined he showed "genuine" remorse and believed he was unlikely to reoffend having attended therapy.
A delegate of Mr Giles sought to cancel his visa on the basis that family sexual violence was a very serious offence and should override CHCY's longstanding connection to Australia and his lack of ties in New Zealand.
But when CHCY appealed the decision to the AAT, AAT member and former Labor MP Anna Burke, who heard the case, determined he should stay. In part, this decision was based on the understanding that CHCY's wife and three biological children were likely to move with him to New Zealand if he were deported, which meant that the welfare of the children would not be improved by deportation.
The AAT also noted the victim of CHCY's offending (his stepdaughter) had since moved to New Zealand, although CHCY told the tribunal he would not contact her if he were forcibly removed.
Senator Paterson said the AAT's decisions were ultimately the responsibility of the minister, as the AAT had to follow the minister's direction.
"[He] said you have to consider as the primary consideration, even if the offending is severe, a connection to Australia."
Officials from the Department of Home Affairs will appear before a Senate estimates hearing today, where they are also expected to face questions about the 151 detainees who were released following a High Court decision late last year.
Senator Paterson said he had sought information on the number of offences committed by those detainees since their release, after several offences were reported in the media.
