High Court to Cover New Territory In Determining Whether Indigenous Non-Citizens of Australia Can Be Deported
DEPORTING NON-CITIZENS ON CHARACTER GROUNDS
The Migration Minister in Australia has the legislated power to refuse or cancel the visa of a non-Australian citizen on character grounds under section 501 of the Migration Act 1958 (Cth). What are these grounds? How does one test something that is potentially subjective such as a person‚Äôs character? Section 501 states that the Minister can refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if they do not satisfy the character test, or if the Minister reasonably suspects that the person does not pass the character test. The character test is defined by subsection (6), the most important points being these:
‚Ä¶ a person does not pass the¬†character test¬†if:
(a)¬† the person has a substantial criminal record; or
(aa)¬† the person has been convicted of an offence that was committed:
(i)¬† while the person was in immigration detention; or
(ii)¬† during an escape by the person from immigration detention; or
(iii)¬† after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab)¬† the person has been convicted of an offence against section¬†197A (escape from detention).
Subsection (6) covers activities which the Minister reasonably suspects the person engaging in, such as being a member of a criminal organisation or having been involved in people smuggling. The section lists crimes that the person has been convicted of either in or outside of Australia, such as trafficking in persons, war crimes or crimes against humanity, and offences against the person. The Minister must have regard to the person‚Äôs past and present criminal conduct, their past and present general conduct, and:
(d)¬† in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)¬† engage in criminal conduct in Australia; or
(ii)¬† harass, molest, intimidate or stalk another person in Australia; or
(iii)¬† vilify a segment of the Australian community; or
(iv)¬† incite discord in the Australian community or in a segment of that community; or
(v)¬† represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
WHAT IS A SUBSTANTIAL RECORD?
¬†¬†¬†¬†¬†¬†¬†¬†¬† (7)¬† For the purposes of the character test, a person has a¬†substantial criminal record¬†if:
(a)¬† the person has been¬†sentenced¬†to death; or
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (b)¬† ‚Ä¶¬†imprisonment¬†for life; or
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (c)¬† ‚Ä¶ a term of¬†imprisonment¬†of 12 months or more; or
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (d)¬† ‚Ä¶ 2 or more terms of¬†imprisonment, where the total of those terms is 12 months or more; or
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (e)¬† the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (f)¬† the person has:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (i)¬† been found by a¬†court¬†to not be fit to plead, in relation to an offence; and
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† (ii)¬† the¬†court¬†has nonetheless found that on the evidence available the person committed the offence; and
(iii)¬† as a result, the person has been detained in a facility or institution.
HOW THIS WORKS IN PRACTICE
This appears to be good law on the face of it; people who engage in serious crime, particularly Commonwealth offences, should not be permitted to stay in Australia if they are not willing to uphold the values of our society. This makes logical sense, of course, but as you can see, imprisonment for 12 months or more, is categorised as a substantial criminal record, along with imprisonment for life. There is a huge difference between a year sentence, and a life sentence. If a term of imprisonment of 12 months is enough to make it on the list of substantial criminal record, why did the Federal Government even legislate for life imprisonment? This should be a given. In any event, the cut-off is at least 12 months‚Äô imprisonment to satisfy the substantial criminal record requirement.
Recent media reports address issues where families with children that have been born and raised in Australia face deportation after having their asylum claims rejected. Somewhat conversely, the High Court now faces a constitutional question involving Indigenous Australians who were born overseas who have not claimed their Australian citizenship, who face deportation by way of the character grounds listed above.
Last week the High Court had its first hearing day for the matters of Daniel Love and Brendan Thoms. Love was born in Papua New Guinea, to a PNG citizen mother and Australian citizen father, automatically acquiring his mother‚Äôs citizenship. His family settled permanently in Australia when he was five years old and given permanent residence. He is recognised as a Kamilaroi man. Thoms was born in New Zealand to an Australian citizen mother and New Zealand citizen father, automatically acquiring his father‚Äôs citizenship. He was entitled to apply for Australian citizenship but never did. He has permanently lived here since 1994 under a special category visa. He is recognised as a Gunggari man, and a native title holder under common law.
Both men were separately convicted of crimes in 2018 and sentenced to 12 and 18 months respectively. They both had their visas cancelled under section 501 above and were taken to immigration detention. Ministerial discretion was used to give Love his visa back but Thoms remains in detention after more than seven months. The case is now before the Court, so it can make a determination on the inconsistencies between these two cases and decide if the government is using their power lawfully.
So far it has been submitted on behalf of the men that Indigenous people cannot be alien to Australia and were beyond the reach of that constitutional power. It is also suggested that if the men are not considered citizens under its statutory definition, this does not automatically mean that they are aliens. Counter to this, the Australian Government submitted that whether the men were Indigenous or native title holders was irrelevant to the question of their alien status.
WHAT COULD HAPPEN?
This case could really go either way and it is unknown what the Bench is thinking at this stage. It is an extremely complicated area of law, made worse by such factors as, since its independence in 1975,¬† Indigenous people and those born in Papua New Guinea, have at times ended up stateless, where each country assumed people had citizenship of the other and revoked their own. A positive note on either outcome of this case, however, is that neither of these men will be left stateless, in contravention to the UN Convention on Statelessness, as they are citizens of PNG and New Zealand, respectively. The harsh reality of this case for Thoms is that he has spent his whole life here and has made a life for himself.