May 29, 2024
Labor has reversed its position on a controversial ministerial direction on visa cancellation, vowing to replace it with an order that community safety is paramount and outweighs a non-citizen’s ties to Australia.
At the start of question time on Wednesday the prime minister, Anthony Albanese, sought to stem political damage from the revelation that dozens of visas have been restored to non-citizens with serious criminal convictions by an independent tribunal.
Earlier, the home affairs minister, Clare O’Neil, had conceded the government is “deeply concerned” about cases of serious criminal offenders having their visas restored by the Administrative Appeals Tribunal (AAT).
Albanese told the lower house “the only effective way of ensuring the tribunal members are making better decisions is to issue a new revised direction which the [immigration] minister will be doing”.
“The new directive will ensure that the protection of the community outweighs any other consideration.”
Under the rules in ministerial direction 99 before cancelling a visa, the decision-maker must consider the strength, nature and duration of the non-citizen’s ties to Australia alongside four other “primary considerations”. These include protecting the community and “whether the conduct engaged in constituted family violence”.
On Wednesday the immigration minister, Andrew Giles, told parliament that visa decisions “need to be guided by two clear principles: firstly the protection of the Australian community [and] secondly, common sense”.
“A number of recent AAT decisions have not shown common sense,” he said, supporting the decision to revise the direction and noting that parliament had this week passed legislation to abolish the AAT and replace it with a new administrative review Tribunal.
After days of Coalition attacks, Albanese countered by revealing details of AAT cases in which non-citizens had their visas restored during the Coalition government under earlier cancellation rules.
These included YKZZ, an Iranian heroin dealer and ice manufacturer, a Brazilian man found guilty of on robbery and assault and HMDS Nigerian heroin dealer.
The controversy over ministerial direction 99 has already seen Giles re-cancel the visa of a Sudanese man charged with murder and order an urgent review into other cases for possible re-cancellation.
Earlier, O’Neil told Channel Seven’s Sunrise that Giles is “actively reviewing about 30 cases that we’re concerned about indeed he’s already cancelled some of those visas”. She added he was “a good minister” and “diligent in his work”.
After question time, Giles promised the new rules will “introduce further mechanisms to enable the perspective of victims and their families to be more clearly brought to bear” and “deal more effectively with the scourge that is family violence”.
Giles told ABC TV it was “unacceptable” that his department had not brought cases of non-citizens with serious offences getting their visas back to his attention. He has now advised it to do so within 24 hours of “any such” AAT decision.
On Tuesday the home affairs department secretary, Stephanie Foster, took responsibility for the failure to inform Giles of the AAT decisions to allow him to consider re-cancelling their visas.
She said the department “had agreed a protocol, to bring to his attention cases of a particular nature” but then failed to “adequately resource” that function, resulting in delays.
Foster agreed with Paterson’s characterisation that the failure was “extraordinary”.
“I regret very much that this has happened,” she said. “I was not aware we were failing to meet our obligations.”
Guardian Australia revealed on Tuesday that Giles had been advised only those without “serious offending or family violence” stood to benefit from the direction, and that the change would “not have a substantive effect” on those convicted of more serious crimes.
On Wednesday evening the shadow home affairs minister, James Paterson, grilled officials about the case of Charles William Davidson, a masseur who had his visa restored by the AAT in February despite being convicted of 59 offences against 26 different victims, including seven counts of rape.
The AAT had given “very heavy weight” to Davidson’s ties to Australia, as the 74-year-old had come to the country at age five and spent 95% of his life in Australia.
Paterson described it as a “textbook case of someone who should not be in our community, regardless of how long they are here”.
“How on earth have we found ourselves in a situation where, as a result of a ministerial direction, the AAT is allowing people like this to stay in our country?”
Watt told the hearing that neither Giles nor his office were aware of the case “and they’ve now asked the department to add this case to the list of urgent cases for cancellation submissions”.
