Visa appeal tribunal told to go harder on criminals

Dominic Giannini |

Home Affairs’ Stephanie Foster says the minister wasn’t advised on decisions allowing crims to stay.
Home Affairs’ Stephanie Foster says the minister wasn’t advised on decisions allowing crims to stay.

The federal government will reform a direction given to an independent tribunal that oversees visa cancellation appeals after it was used to keep a convicted rapist in Australia. 

Ministerial direction 99 was an edict to the Administrative Appeals Tribunal, telling it to consider a foreign national’s ties to Australia before upholding visa cancellations.

A New Zealand man, known as CHCY, was allowed to keep his visa by the tribunal despite being found guilty of raping his stepdaughter.

The tribunal’s recent decisions “have not shown common sense”, Immigration Minister Andrew Giles told parliament on Wednesday, after Home Affairs Minister Clare O’Neil said it wasn’t meeting community expectations about public safety.

“The new direction will ensure that all members of the (tribunal) will adopt a commonsense approach to visa decisions, consistent with the intent of ministerial direction 99,” Mr Giles said. 

Prime Minister Anthony Albanese
Prime Minister Anthony Albanese defended Mr Giles who’s been facing calls for his resignation. (Mick Tsikas/AAP PHOTOS)

A revised direction was “the only effective way of ensuring the tribunal members are making better decisions”, Prime Minister Anthony Albanese said.

Mr Albanese defended his minister, saying the government had deported 4200 from immigration detention since taking power.

The government was advised the direction was unlikely to result in “people committing serious offences being able to have their visa cancellation overturned” but that hadn’t been the case, Labor frontbencher Murray Watt said.

“I don’t think these decisions by the AAT were in line with the government’s intention,” he said.

Mr Giles has been under fire over the government’s handling of the fallout from a High Court case that released 153 immigration detainees, after ruling that keeping them locked up indefinitely was illegal.

The number of former detainees who have allegedly reoffended has jumped to 29, with criminal charges including thefts, assaults, drug possession and breaching domestic violence orders.

Of the 29 charged with further offending, 25 were subject to curfews at the time and 26 had ankle bracelets, Home Affairs officials told a parliamentary hearing.

Alleged offences included 19 thefts, 11 assaults, nine drug possessions, seven breaches of bail and five breaches of child protection orders.

Offences that had fewer than five alleged offenders included contravening domestic violence orders, acts of indecency, blackmail, breach of state monitoring orders, impersonating a police officer, robbery, resisting arrest, kidnapping, threat to kill, weapon possession and drug driving.

Australian Border Force (ABF) Commissioner Michael Outram
ABF Michael Outram said people subjected to ankle bracelets or curfews could still offend. (Mick Tsikas/AAP PHOTOS)

Of the 153 former detainees, 76 are subject to electronic monitoring and 68 to a curfew.

Of 39 convicted sex offenders, 26 aren’t being electronically monitored and 27 aren’t subject to curfews.

Opposition home affairs spokesman James Paterson berated officials for the number of convicted rapists and at least two murderers who weren’t subject to monitoring conditions. 

“That’s extraordinary, how on earth can we have former murderers not being electronically monitored in the community?” he questioned. 

But officials defended the figures, saying restrictions needed to withstand court challenges and weren’t applied in a blanket manner under the law.

“It’s a legal test, this has to be legally robust,” Australian Border Force Commissioner Michael Outram said.

“The law doesn’t give us a list of offences or convictions by which we have to apply conditions.”

Ankle bracelets and curfews weren’t a panacea and people subject to such measures could still reoffend, he added.

Mr Giles and his department also defended not applying for a preventative detention order under powers rammed through parliament in December, saying they had to be legally robust before being put through court. 

Such an order would allow the government to re-detain a person if they’re posed an unacceptable risk to the community.

But a failed court bid risked resulting in fewer restrictions being put in place, Home Affairs department general counsel Clare Sharpe said.

AAP