Blog by Louisa Deans, Registered Migration Agent (MARN) 1574187 at AMVL Migrations
In my opinion, being of ‘good character’ is entirely subjective and vague in nature. Believe it or not, the Department of Immigration and Border Protection (‘The Department’) now require a Permanent Resident to be of ‘good character’ indefinitely. Unlike Australian Citizens, they are not afforded the luxury to make a bad decision and test their ‘good character’.
All Permanent Resident visas in Australia are subject to mandatory cancellation under character grounds in certain circumstances. To put it in simple terms; this is a legal instrument that Australia has relied upon to ‘protect’ Australian borders whereby the Department now cancels Permanent visas if the holder has been sentenced to jail for a period of over 12 months and enters jail for at least some period (even if they do not actually spend the full 12 months in prison). I should preface this by saying I have no qualms with the notion of this regime, in circumstances where a serious offence has been committed. I do, however, have an issue with the liberal implementation behind mandatory cancellation and what the Department has deemed a ‘serious offence’.
If the Permanent Resident has committed a crime which attracts a 12 month penalty, this is considered a ‘serious offence’. The Permanent Resident is afforded a short period of time to apply for revocation (appeal) on this decision, however the author is aware that there have been exceptionally limited circumstances where revocation is granted. Permanent Residents are spending more than 6 months in Immigration detention, awaiting a decision on their revocation appeal at a significant cost to the taxpayer.
The notion of double punishment in Australia is entirely un-constitutional. However, I cannot help but draw similarities. The Department is essentially inflicting their own punishment on top of the punishment afforded by the Courts. Due to the broad nature of mandatory cancellation, thousands are being affected. One would assume that a Permanent Resident should be afforded the same opportunities as any other Australian citizen. The Department are essentially punishing the foreigner twice for the same crime and holding them in Immigration Detention.
One of the biggest problems with mandatory cancellation is that the provisions do not account for Refugees/stateless persons. These people have been declared refugees and accepted into our borders. They may live their life in Australia for several years and then have their visa mandatorily cancelled. How can you possibly send a refugee (who has been officially declared a Refugee and granted a Humanitarian or Protection visa) home when there is no home country? Instead, the Department have chosen to keep them in Detention indefinitely.
It is important to note that all Permanent Residents have to pass the ‘character test’ when applying for their visa. As such, they were of ‘good character’ by Department standards at some stage in their life. Should a foreigner be punished down the track because they didn’t end up being exactly what ‘we’ thought? This mandatory cancellation regime seems to be based on the principle that we expect foreigners to be ‘perfect’ when they arrive to Australia and if that doesn’t work out, we simply do not want them anymore. In my opinion, this is entirely archaic and superficial.
Another problem with the mandatory cancellation regime surrounds immigrants who have come to Australia as a child and have resided in Australia for many years, only to have their Permanent Resident visa cancelled for a crime which attracts a penalty of over 12 months imprisonment. As the individual has been living in Australia for many years, they really have no ‘home country’ to return to; their family, belongings and life are here. Many do not speak the native language and are not familiar with the customs and norms. Can you imagine being taken from your family and friends and placed in a country where you know no one and do not speak the language?
As a consequence of mandatory cancellation, the former visa holder is placed in Immigration detention while any appeals are heard and finalised or until they are removed from Australia. However, there are many circumstances (particularly humanitarian cases) where the former visa holder has no ‘home’ to return to and faces indefinite detention. At times, the Australian media reports on suicide in immigration detention centres. Is it really surprising that there is an increase in media reports of suicide attempts and mental illness in Immigration detention centres when people are faced with the prospect of living in immigration detention for an unknown length of time? This author is aware of several cases in the last two months where suicide attempts have been made due to the mandatory cancellation regime.
It is my position that the Department should abolish mandatory cancellation of Permanent Resident visas for those who receive at least a 12 month prison sentence. In addition, cancellation consideration should only apply to those with a minimum three year sentence, opposed to the current 12 months sentence in place. This ensures that the system only affects those with more serious offences. I believe the Department should implement a system whereby the Permanent Resident receives a letter advising them of the cancellation risk and is afforded the opportunity to respond before being placed in Immigration detention.
Given the high number of non-serious offenders currently in Immigration detention and the lack of appeal decisions being made, it is evident that the mandatory cancellation regime has been costly, ineffective and impracticable, and should be re-evaluated immediately. It is time for the Department to be realistic and implement policies that are practical; instead of a cowboy approach of cancelling first and asking questions later. A decision affecting someone’s entire life and future should not be made by a system generating mandatory cancellation letters.