Key Points
- Section 501 of the Migration Act gives the immigration minister powers to cancel visas on character grounds.
- The proposed bill will retrospectively amend the Migration Act to validate past decisions.
- Ethical concerns have been raised by various independents about the retrospectivity of the proposed legislation.
Labor has rushed to close a legal loophole that saw 163 people with criminal records released from immigration detention.
It comes after a High Court decision in December, which found that aggregate prison terms could not trigger automatic visa cancellations, under section 501 of the Migration Act.
That section gives the immigration minister powers to cancel visas on character grounds – including if someone has a “substantial criminal record” – defined as a prison term of 12 months or more.
The High Court, ruling in favour of New Zealand woman Kate Pearson who was serving a prison term of four years and three months for 10 separate offences – found the legislation did not specifically include aggregate sentences when considering a “substantial criminal record".
Speaking in Senate Estimates on Monday night, the department of Home Affairs' associate secretary of immigration, Sophie Foster, confirmed 163 people had visas reissued following the court’s decision.
The same day in parliament, Immigration Minister Andrew Giles introduced an amendment to the Migration Act – to close the legislative loophole.
“The bill will also retrospectively amend the Migration Act to validate past decisions and actions that have been rendered invalid on the basis of the judgement in Pearson,” he said.
“Where previous cancellation decisions were rendered invalid because of Pearson, they will be revalidated,
“This is important to enable those decisions that were to protect the Australian community to stand.”
Ethical concerns raised by Teal independent
The Bill was supported by the opposition, but opposed by the Greens and various independents including Zoe Daniel, who raised ethical concerns.
“The retrospectivity of the legislation means that people who the government had released for just days or weeks and reunited with their families and communities will likely be forcibly taken back to detention,” Ms Daniel said.
Ms Daniel referred to a South Sudanese man she had met, who was sentenced to 18 months for affray and drug offences – before his sentence was reduced to 10 months.
His visa was cancelled, which saw him spend two years in immigration detention, before he was released as a result of the Pearson judgement.
“It seems to me [being re-detained] is only likely to compound his trauma of war, being orphaned, traversing refugee camps and a new environment and then seeking solace in drugs and alcohol,” she said.
“These are human factors that this legislation does not address.”
Refugee lawyer predicts constitutional challenge
Refugee lawyer Hamish Glenister said his client — who is among the 163 people released from immigration detention – has already been issued a notice of intent to cancel his visa.
He said the government’s amendment “massively expands the category of offences for which mandatory cancellation can be imposed," and predicted a constitutional challenge.
"Retrospective legislation is often the subject of a constitutional challenge, but this legislation also interferes with section 75 of the constitution which entrenches judicial review,” Mr Glenister said.
“Assuming the legislation is valid, the effect will be that everyone released will be sent back to immigration detention,” he said.
Mr Glenister said the government’s amendments should have taken into consideration individual circumstances.
"The government did need to amend the legislation – because in its previous form, someone convicted of very serious offences was not captured…but now they’ve gone to the other extreme where you have vulnerable people committing multiple minor offences having their visa automatically cancelled.”
“A better way to amend it would have been to take into account the individual sentences captured in the aggregate sentence.”
