Attorneys have urged the Australian government to “stop toying with people’s lives” as it prepares to re-detain dozens of individuals who were released from immigration detention over the holiday season.
A full federal court case ruled that aggregate sentences do not qualify for the Migration Act’s automatic visa cancellation provisions. Resulting in the release of approximately 160 individuals from detention.
A cumulative sentence is when a person receives a single sentence for multiple offenses.
Instead of appealing, the Albanese government rushed through legislation restoring the original interpretation. Despite refugee and asylum seeker protests over its retrospective provisions, it passed the Senate Monday with Coalition backing.
Dozens of individuals whose visas were affected by the measure have been informed that they will be re-incarcerated. Concerns have been expressed by crossbench MPs and attorneys regarding the impact on individuals with a history of minor offenses.
Senior attorney at the Asylum Seeker Resource Centre Rachel Saravanamuthu stated. “These are some of the most difficult conversations I’ve ever had with clients.”
“People are just beginning to rebuild their lives – reuniting with family, beginning new careers, and regaining faith for the future. “Their hopes have been abruptly shattered, and they are devastated.”
Saravanamuthu stated that people had “already endured a traumatic visa cancellation process and lengthy time in detention. And now must endure this again, which is especially inhumane.”
The government must cease playing with the lives of its citizens.
According to an official notice, “Your visa cancellation under section 501 of the Migration Act has been validated by operation of the Aggregate Sentences Act and is now legally effective, and you no longer hold a visa.” Consequently, you are an unlawful noncitizen who may be detained and deported from Australia.
“Since you no longer possess a valid visa to remain in Australia, you are subject to immigration detention. And we advise you to self-report to the Australian Border Force… Alternately, you are free to leave Australia voluntarily.”
Human Rights Law Centre, Asylum Seeker Resource Centre, and Visa Cancellation Working Group issued a joint statement expressing “serious concern over the arbitrary re-detention of individuals without regard to their circumstances, including whether they are refugees and entitled to protection.”
“At least one refugee who did not receive the letter and was taken back into immigration detention on their way to work must now recommence the uncertain, intimidating, and traumatic process of having their visas reinstated,” according to the statement.
“The people who got letters on Friday and are now facing re-detention lived with their families in the community.”
Zoe Daniel, an independent representative for Goldstein, stated that after forcing legislation through parliament to effectively overturn a court decision. The government promptly began re-detaining refugees, “putting them into what appears to be indefinite detention.”
“My concern was always that individuals with a string of minor offenses combined into one sentence would be caught up in an approach ostensibly designed to protect the community from violent criminals,” she said.
It appears that this is occurring.
According to the government, its newly enacted amendments “make plain that a person sentenced to a term of imprisonment of one year or more does not pass the character test based on a substantial criminal record.
The bill’s explanatory notes state that this applies to sentences for one or more crimes. And “regardless of the perceived seriousness of any individual offense.”
Refugee Action Coalition’s Ian Rintoul stated that the government must cease its indiscriminate re-detention operations.
“Section 501 of the Migration Act was always an unjust and discriminatory provision that authorized the government to hold people indefinitely, even for minor offenses, simply because they are noncitizens,” he said.
“There must be total transparency and a thorough accounting of the debacle surrounding the release of the documents. “Labor should specify who was released and under what circumstances they were re-arrested.”
On Sunday, the office of immigration minister Andrew Giles was contacted for comment.
However, Giles has previously informed parliament that the court decision “created an inconsistency in Australia’s visa cancellation regime, whereby some noncitizen offenders who receive a cumulative sentence of 12 months or more for multiple offenses do not meet the criteria for having a substantial criminal record under section 501 of the Migration Act.”
“For instance, a person sentenced to 10 years in prison for committing a violent offense would be deemed to have a substantial criminal record and would be subject to mandatory cancellation of their visa,” he said. “However, a 15-year prison term for two offences would not result in visa cancellation.”
About the possibility of re-detention for recently released detainees, Giles stated that amending the Migration Act retroactively to validate past decisions was “essential to allow those decisions to protect the Australian community to stand.”
