Alien, not an Austr-alian

By Legal Eagle

Yet again, a somewhat doubtful aspect of Australia’s immigration policy has re-emerged into the spotlight. The Minister for Immigration revokes the visas of people who have lived for most of their lives in Australia, and then sends them back to their country of origin. The visas are revoked because of the criminal records of the people involved. The deportees often have drug and alcohol problems, health issues and sometimes mental health issues too.

Probably the most prominent example of a person in this situation previously was Robert Jovicic, who was deported to Serbia in 2004 on account of his extensive criminal record, despite having lived most of his life in Australia and despite the fact he did not speak Serbian. Jovicic was found to be destitute on the streets of Belgrade after his return, and eventually, after much uncertainty as to his status, he was returned to Australia and granted Permanent Residency in February 2008.

In any case, the issue has reared its head again, as the Sydney Morning Herald reports that the latest case has had a tragic ending. Andrew Moore was born in Scotland, but arrived in Australia at the age of 11. Over thirty years later, the Minister for Immigration revoked Moore’s visa on the basis of his criminal record. Moore had become involved with the law since the age of 14, and had been convicted of manslaughter after he stabbed a drinking buddy in a drunken brawl in 2000. Thereafter, Moore was held in immigration detention for an extended period while the Minister for Immigration assessed his status. He escaped detention in May this year, later turning himself in. He had problems with alcoholism, as well as liver damage, Hepatitis C and other health problems. His extended family still live in Australia, including his 15-year-old son.

On 20 October this year, Moore was flown back to the UK and released with money, medication and a hotel booking for a month at Heathrow Airport. On 23 October, Moore was discovered seriously injured in London and was pronounced dead after arriving at hospital. The cause of death is still not known, and an autopsy was inconclusive.

A friend was asking me whether this practice was legal or not. Unfortunately, it seems that it is. Section 501(3) of the Migration Act 1958 (Cth) empowers the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test or if the Minister is satisfied such deportation is in the national interest. According to s 501(5), the rules of natural justice do not apply to a decision under s 501(3). Relevantly, pursuant to s 501(6)(a) a person will not pass the character test if they have a “substantial criminal record” (defined in s 501(7)).

A deportee in similar circumstances to Moore unsuccessfully challenged his deportation after his visa was cancelled by then Immigration Minister Amanda Vanstone. The deportee, Stefan Nystrom, was born in Sweden. His mother and father were permanent residents in Australia, but his mother returned to Sweden to see her family while pregnant and ended up giving birth to Nystrom in Sweden. She returned to Australia with her son when he was 27 days old. He never visited Sweden, did not know his Swedish relatives and did not speak Swedish.

It is difficult to feel sympathy with Nystrom on a personal level. He first became involved with the law at the age of 11, and by the age of 16, he had appeared in the Children’s Court on 10 occasions for charges including theft, burglary and criminal damage. At the age of 16, Nystrom was convicted of aggravated rape and intentionally causing serious injury. He was subsequently convicted of other offences, including arson and various offences relating to property damage; armed robbery, burglary and theft; various driving offences, including reckless conduct endangering life; and offences relating to the possession and use of drugs.

Thus in August 2004, the Minister for Immigration canceled Nystrom’s “Transitional (Permanent) Visa” on the basis that he had failed the character test as a result of his substantial criminal record. Nystrom appealed the cancellation of his visa, and the case went all the way up to the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50. Nystrom’s counsel argued that the Minister failed to take into account the fact that Nystrom also had an “Absorbed Person Visa” as defined by s 34 of the Migration Act. Essentially, s 34 sought to “catch” people who had not been “illegal entrants” under the previous regime, but who had been unintentionally rendered “unlawful non-citizens” because of amendments to the Migration Act in 1994. Section 34 granted them “Absorbed Person Visas” (dependent upon the date they had arrived in Australia and various other factors).

The High Court agreed that Nystrom held both a Transitional (Permanent) Visa and an Absorbed Person Visa by operation of the Act. However, it found that the Minister had not fallen into jurisdictional error by her failure to have regard to the Absorbed Person Visa, and nor had she failed to take into account relevant considerations. Heydon and Crennan JJ stated at [128] – [129]:

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the Minister is not bound to take into account the “nature” of the other. This is because there was no consideration relevant to Mr Nystrom’s Absorbed Person Visa which was not relevant to and considered when the Minister cancelled his Transitional (Permanent) Visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion.

Nor did the other mechanism for deporting non-citizens in s 201 of the Act restrict the operation of the Minister’s powers under s 501 (contrary to the finding of a majority of the Full Federal Court in the same case).

Thus Nystrom was deported at the end of 2006.

It is easy to be scornful of the deportees in these cases. They are not fine and upstanding members of our community. Indeed, apparently Derryn Hinch ran a story on talkback radio earlier this year attacking Andrew Moore and criticising the decision to give him a television and DVD player while he was in detention.

But… If a person has lived most of their life in Australia, and all their family is in Australia, it can hardly be said that they “belong” to the country of their birth. I cannot help thinking that these cases are unfair. The deportee may not be a person who invites much sympathy, but the process under s 501 seems arbitrary. It also seems a bit like palming our problems off on other countries. You would have thought that with our convict history and all, we might have felt just a little bit hypocritical in doing that…

43 Comments

  1. Posted December 8, 2009 at 1:55 am | Permalink

    The Moore case interests me. So many questions…

    If he was born in Scotland why was he returned to England? Both Edinburgh and Glasgow have international airports.

    Was the hotel booked AND paid for the month or just booked?

    Had the Australian authorities alerted a) UK immigration authorities and/or b) the local social services department that they were about to receive a homeless and traumatised repatriation with health difficulties?

    Where does duty of care end with this “handwashing” legislation? It extended enough to provide money, medication and temporary accommodation in another country so did it not extend to contacting the British authorities to make sure a social worker picked him up at the other end? He’d at least need an NHS healthcard and support to find new accommodation.

    I hope the family sues.

  2. Chris Grealy
    Posted December 8, 2009 at 3:21 am | Permalink

    Hey, he stuffed up. He could have kept his nose clean and applied for Australian citizenship, but he didn’t. It’s a cruel world, but it looks like he was heading for this all of his life.

  3. Posted December 8, 2009 at 3:50 am | Permalink

    Duty of care isn’t determined by how “deserving” you are Chris, that’s not the point. The test for duty is “is it reasonably forseeable” – I think the answer here is likely to be yes.

  4. Jayjee
    Posted December 8, 2009 at 6:49 am | Permalink

    Putting aside the characters of those deported, this article just shows what a schmozzle our immigration system is in. How can a person spend twenty straight years here and not have permanent resident status? Do we know if the unsavoury wops above even knew what their visa status was, let alone the attendant legal implications? It seems not.

    Due to English lineage, I first entered the UK and had “permanent right to remain” stamped in my passport. Other Australian mates got in on some sort of Commonweralth citizen/young person’s working visa, which after four years entitled them to apply for permanent residency, which they all did, and all were successful.

    When young children are involved, surely they should be given the same visa status as their parents? I’m not sure how the system works here, but if it is like the UK, maybe Immigration sould send them a reminder letter: “your 2/4/whatever year temporary visa is nearly up. In order to continue living in Australia you will have to get a permament resident’s visa, or else leave the country and reapply for a tourist visa”.

    It does nobody any good – the Australian people or the unsavoury wops described above – to allow people to wallow here for years on end in legal limbo.

  5. Jon S
    Posted December 8, 2009 at 6:57 am | Permalink

    I can see this sort of policy being quite popular amongst the general populace, so I don’t really see it changing at all soon. I would, however, be interested to know whether any other countries have similar policies… it might not seem like such a great policy if it worked both ways!

    LE – I totally agree about the point on celebrities!

  6. Posted December 8, 2009 at 7:09 am | Permalink

    This is a cock-up all round. More information is needed (I’m curious about the dealings with social services over here, too) in order to establish the scale of the cock-up…

  7. HeathG
    Posted December 8, 2009 at 7:13 am | Permalink

    Another interesting article on this topic.

    http://www.thepunch.com.au/articles/abused-as-a-child-with-an-angry-message-to-australia/

    UK child welfare advocate taking a shot at aus policy of dumping pedophiles in the UK using the above approach. Her key points are that by dumping them back in the UK they don’t have the support or supervision mechanisms (designed to stop them reoffending) that they would have in place in Australia.

  8. Posted December 8, 2009 at 8:37 am | Permalink

    If I understand your post correctly, the Minister is following the law. (Something these people cannot do). If the law is wrong, then what should it be changed to???

    I think it is very Australian to sit back in the cheap seats and scream and moan about what is wrong with the world.

    What should the Minister do? Who should pay for it?

  9. Posted December 8, 2009 at 9:15 am | Permalink

    It’s pretty screwed up, I remember blogging on one of these cases yonks ago. Hang on… there:
    http://armagnacd.blogspot.com/2005/12/face-of-australian-civilisation.html

    I’m a bit torn, only because as someone who generally advocates a more liberal attitude towards refugees in particular, I’ve tended to take the view that we should put less emphasis on all the barriers to entry, and more on giving people a chance to show they can make a good contribution.

    But most of these people who get deported sound like they are seriously mentally unwell, and when the affect on kids and others in their lives is ignored that’s pretty sad.

    As for the Poms, well, if this is the argument:

    “The moment he steps into this country we have no legal ability to deploy any of those restrictions. The minute he steps into this country he is in a different jurisdiction and your laws and restrictions no longer apply.”

    the answer is pass a law. Write it, take it to Parliament, pass it. It’s not rocket jurisprudence.

  10. Posted December 8, 2009 at 10:30 am | Permalink

    Recidivists all, sympathy for such cases won’t be forthcoming until someone decent (ie, someone who shouldn’t have been choked at birth) is repatriated to inner-hellholia for neglecting to pay a traffic fine.

  11. Tim Quilty
    Posted December 8, 2009 at 10:31 am | Permalink

    The answer is to apply for citizenship at the first possible opportunity. Then you can break laws with impunity…

  12. Marilyn Shepherd
    Posted December 8, 2009 at 10:54 am | Permalink

    Citizenship is not worth the paper it is written on anyway, just ask Vivian Alvarez and David Hicks or Mamdouh Habib. It is a statutory agreement only because constitutionally there is no such thing as an Australian citizen, we are all British subjects, except by statute.

    Deporting people in this manner is just plain wrong. If they have done the crime and the time they are then punished two more times by statute without oversight. First they are locked up without further charges on the say so of one politician, then they are deported on the say so of one public servant. One crime, three punishments.

    The DIC’s have greater powers of detention without warrant or charges than the FBI and that is something that is always wrong in any democracy.

    AS we have seen the DIC’s stuff up more times than most of us have hot breakfasts.

  13. Posted December 8, 2009 at 11:31 am | Permalink

    Good post.

    These cases are often inherently unfair – which is why this section of the Migation Act precludes natural justice (as do other sections).

    John at 5 – this man was a permanent resident of Australia. People can have their permanent residency status revoked, even if they have lived here for more than 50 years. It is only by becoming an Australian citizen that you actually gain a permanent unrevolkable right to reside in Australia.

    Christian at 9 – you are right, the Department & the Minister have followed the law in this case (at least in reagrds to being able to cancel his visa and deport him). The law is unjust and it should be changed. The capacity for this to be done in case like Mr Moore’s was only brought into the law in 1997. (the media article said 1999, but I’m fairly sure the changes passed the Senate in 1997). I’d note the changes were made with the support of the then Labor Opposition. In any case, the law was changed, and it can and should be changed again.

    It is not about whether the person deported is a good or bad person, or about how deserving they are.

    It as about

    (a) what length of residency should be sufficient to assume people are the responsibility of Australia, even if they are technically not Australian citizens. It used to be that people could not have their visa automatically cancelled on character grounds once they had lived here for ten years or more.

    (b) the poor practice of dumping problem people – who should be our responsibility – on other countries. We wouldn’t like it another country dumped (for example) a 50 year old pedophile at Sydney airport who had no English language ability and no family connections but who was technically an Australian citizen despite living in some non-English speaking country in Europe for all but the first year of his life.

    (c) the family of the deportee. In many of these cases, it is the family of deportee who suffers most. The deportee is basically being exiled from Australia for life (as they are unlikely to be allowed a visitor visa back to Australia) so their family is basically exiled from them too (unless they all want to shift countries, which they might not be able to do even if they want, as in many cases they are Australian citizens (such as Mr Moore’s son) who wouldn’t necessarily be entitled to live in or migrate to the other country. This deportation denied this boy access to his father – they may well have not the perfect relationship, but forcing this sort of separation of families is hardly just either.

  14. Posted December 8, 2009 at 12:38 pm | Permalink

    Then what is the point of citizenship? Surely citizenship is about making an open commitment to a particular country. Absent that commitment, surely that puts limits on the commitment in reverse? Surely it is in distinguishing citizen from non-citizen that the law is like it is and how much to we want to wear away at that distinction?

  15. Posted December 8, 2009 at 1:10 pm | Permalink

    I also think there’s something to be said for ‘forced choosing’. This would help to protect the concept of citizenship by putting people on the spot. I also think citizenship should have clear status markers (like suffrage). One of the reasons citizenship is devalued in the UK is that it is possible to vote without it.

    Just on Australia’s fairly casual use of its power to deport, there is widespread envy of that in this country, although the intended targets are different: non-citizen Islamist preachers that Australia could remove in a trice but that the UK cannot treat similarly, thanks to the workings of the ECHR.

    This is quite possibly the most loathed legal document in the country, on account of the fact that it cannot stop the government from effectively suspending habeas corpus — 28 days it is now — but also prevents efficient removal of those who cause much of the problem.

  16. Jayjee
    Posted December 8, 2009 at 1:11 pm | Permalink

    LE

    Why use China in your analogy? Australia is nothing like China, nor is the relation between China/Australia and Chinese/Australian anything like the relationship here: Australian/English/British.

    What about an Australian lager lout being sent back to Australia from the UK. Who would give a stuff?

  17. Ken N
    Posted December 8, 2009 at 1:18 pm | Permalink

    Two (well, three) points
    1. Chucking a person out to a country he does not know and perhaps with a language he or she does not speak amounts to “cruel and unusual punishment”. Not that there is anything about that in the australian constitution (unlike the US) but it still should somewhere be an embedded moral principle in a justice system.
    2. A person who has lived here for the greater part of his or her life is, it seems to me, our problem. Deporting them to a home they no longer have is like throwing rubbish overboard. Doesn’t feel right, somehow.
    3. When I studied law a long time ago I am sure I learnt of a case in which the Hight Court had decided that a person who had become part of the Australian community was beyond the power in the constitution to make laws with respect to migration. I think the court said that migration related to the act of coming in our going out and eventually you reached a point where you were beyond that.
    That made sense to a 21 year old student of constitutional law. Obviously it must have been overruled. Anyone know when?

  18. Jayjee
    Posted December 8, 2009 at 1:24 pm | Permalink

    Andrew’s post raises a very pertinent point, echoed by Lorenzo. That there are differences in privileges/entitlements and obligations betweens citizens and non-citizens is not arcane cruel administrative splitting of hairs. Every society since recorded history began places enormous significance on this difference, and continue to do so today.

    Personally, I think the push of the past two generations to ridicule such notions was a mistake. Your country provides security, shelter, your langauge, your socialisation/education. It is a huge part of your identity, whether you acknowledge/realise it or not.

    A much stronger, healthier polity rich in social capital requires pride in citizenship.

    Perhaps if over the past two generations the dominant forces had not been those whose cultural cringe infested the education systems and bureaucracies ridiculing Australianess, and the real significance and importance of national belonging, then these appallingly behaved wops above might not have got into this mess.

    Having said that, I think the Minister did not really have to exercise her discretion in the way she did for that poor dude dumped on the winter streets among all those Serbo-Croatian nutters.

    As for this poor dead pommie sod: the horrible thing is it looks like he was headed down that road no matter where he lived.

  19. conrad
    Posted December 8, 2009 at 1:45 pm | Permalink

    “I also think there’s something to be said for ‘forced choosing’”
    .
    I’m not sure I mind this idea either, but it would have negative consequences.
    .
    For example, let’s say you want to work in some country for a decade or more (say, the UK) — or even just end up working in some places for a long time when you didn’t expect it. Now, for all intents and purposes, you’re a hard working person and you might well contribute vital skills to the country (these sorts of expats are common in many places — I imagine Australia’s hospital system has a fair few of them). However, because you don’t want to retire there or work there all your life (let’s face it, the UK is cold and miserable after all), you therefore don’t want renounce your Australian passport for a UK one to get citizenship. This would mean that if a value was chosen where you had to become a citizen (say 5 years) that was less than the amount of time you really wanted to stay (or just would end up staying otherwise), you would essentially be obliged to leave earlier, and that would be a loss to the UK who badly needs your skills. Thus, you, the hard working person (and productivity improving too — hence benefitting people wherever you go) is getting penalized so we can have strict laws on citizenship so that a very tiny number of criminals can be dealt with in a simple one-size-fits-all manner. I’m not sure that’s a worthwhile trade-off, although if there are other benefits of forcing people to become citizens as you mention, then perhaps I’d reconsider.

  20. Posted December 8, 2009 at 2:01 pm | Permalink

    SL, the issue you raise is if anything more of a ‘problem’ with the court of human rights or various instruments, rather than with the UK’s attitude to citizenship. Personally I think the obsession with citizenship is overrated, and the UK is rational and reasonable in treating long term residents (far more of whom are taxpaying professionals than barking mad imams) as ‘people’ for the purposes of ‘by the people’.

    It was Australian lawyers living in London who primarily lobbied the Australian government to relax its previous rule that taking another citizenship led to loss of your Australian one. The change reflected the modern world and the movement of labour, and the kind of consequences flagged by Conrad, above.

  21. Jayjee
    Posted December 8, 2009 at 5:10 pm | Permalink

    The particular problems in the UK was that they wanted to deport some non-UK citizen Islamists they had in custody on suspicion of the usual. However, Lady (or maybe a Baroness) Diddlypomps said the ECHR would regard that as racist as some of the suspects were UK citizens and were not being subject to the same “punishment”.

    To Baroness Diddlypomps, they should have quoted the inimitable Ma Sheilah, and said “tough titties”.

  22. Posted December 8, 2009 at 8:57 pm | Permalink

    Why use China in your analogy? Australia is nothing like China.

    Actually, even though LE chose it at random, China is a relevant example relating to this issue as at one time it was refusing to accept the repatriation of its citizens.

    And remember that the British have had recent examples of the dubious guarantees provided by citizenship. Mukhtar Ibrahim was an Eritrean refugee who swore his oath of allegiance in September 2004 … less than a year before he led the second (thankfully botched) attempt at bombing London on 21 July 2005. Oh, and he was awarded citizenship despite having serving jail time for armed robbery and a conviction for indecent assault.

  23. Posted December 8, 2009 at 8:59 pm | Permalink

    I’m having a terminal moment of unclarity at blogs atm (put it down to H. Pylori, I suppose). I’ll try that again: what I meant was some mechanism that ensured someone who was eligible for (Australian) citizenship was forced to turn their mind to it. How this may be achieved I do not know — research would have to be done — but as a couple of people have commented, it seems inconceivable that people should be in legal limbo for so long and be unaware of their own limbo state.

    This would not involve the renunciation of any prior citizenships, but it may well cause a little bell to ring, along the lines of, ‘ah, I’ve been in the country for a long time; citizenship may well be advantageous’. Mailouts would be one part of it, I suppose, but there would be other methods.

  24. Marilyn Shepherd
    Posted December 9, 2009 at 12:36 am | Permalink

    Visas were only introduced in 1989 so who would even know about them if they came before that time?

  25. Jayjee
    Posted December 9, 2009 at 7:05 am | Permalink

    LE

    When a minor is involved (such as the baby and 11 year old above) who has not migrated here voluntarily, then I definitely think the Australian state has a duty of care to educate/remind that minor of his/her choices/responsibilities/rights as to his/her residency status and citizenship rights AND responsibilities when s/he turns 18.

    It would be a different situation if a twenty-something Brit came to Australia, and after a few years got permanent residency and then started on a life of crime. In such a case I don’t have much problem with the Minister booting him back to Manchester when he is in his 30s say.

  26. Jayjee
    Posted December 9, 2009 at 7:10 am | Permalink

    Then again, looking at Andrew Moore’s biography, he might well have been rejected on character grounds even if he had applied for citizenship. Unless of course he had the good fortune to have been a Sunni Muslim living in a SW Sydney during the Hawke-Keating reign of branch-stacking, er surely I mean “immigration” terror. 😉

  27. Robert Young
    Posted December 9, 2009 at 11:33 am | Permalink

    Even citizens who have major convictions for violent offences should be deported to any other country in which they have a right to reside.

    Malaysia allows some persons to live there even though they are not citizens, so some of our very violent offenders could be sent there.

  28. Ken N
    Posted December 9, 2009 at 3:05 pm | Permalink

    [email protected] Alright, alright, I’m gonna hafta you and look at the caselaw. been a long time.
    My recollection is that absorbtion was a matter of fact. Sort of “how far has the person got away from the border”.
    Do they still have those leather bound volumes of CLR in the libraries, or is it all digital these days?

  29. Posted December 9, 2009 at 4:05 pm | Permalink

    Malaysia may be just the place to handle our criminal class.

    M’sia readily resorts to both the noose & the cane. The prison system is geared toward punishment rather than rehabilitation.

    Arrest procedures are often “robust”.

    Penalties are more biblical. (ie, bash a pensioner in the street & you’ll receive more than a suspended sentence accompanied by a lecture.)

    Criminals who suffer hazards of their trade (ie, being shot, bashed, etc) find that emergency medical aid is subordinate to the arrest/charge procedure. ie, an armed robber who is shot by a security guard will discover that the cops take him to the police station & charge him, rather than to the hospital for treatment.

    Mothers who are sentenced & whine that their children “need” them are advised: tough luck, they are going to jail, they should have thought of their kids before turning to crime.

    Yes, Malaysia is well able to handle our crooks. I wonder how much they will ask for to do what Australia hasn’t the stomach for?

  30. Posted December 9, 2009 at 9:34 pm | Permalink

    While people have mentioned “responsibility” here, I wonder if they are merely meaning just “responsibility to manage” or the “responsible as contributing factor”. This is in the line with someone mentioning social services… to the extent they may have been inadequate, (mismanaging the “mad” or “sad” bit of LE’s oft-mentioned trio), then the responsibility as a contributing factor should be reflected in the responsibility to manage.

    It’s a bit like blaming the Artful Dodger for being a criminal after being raised by Fagin.

  31. Ken N
    Posted December 10, 2009 at 9:13 am | Permalink

    Gosh LE what will they think of next?

  32. Jayjee
    Posted December 10, 2009 at 10:15 am | Permalink

    LE

    We already have an exchange program with a number of countries whereby we swap each other’s jailed undesirables. I am all for that. They are one of us, warts and all.

  33. Helen
    Posted December 13, 2009 at 7:18 pm | Permalink

    SATP, your lip-licking pleasure in visions of Malaysian punishments borders on the pathological.

  34. Posted December 14, 2009 at 2:27 pm | Permalink

    Malaysia’s an outstanding example. As long as we move to their penal system while Labor’s still in power.

    Just admitting a preference, see, but what’s not attractive about a system where you accuse your opponents of (Oh Noes!) sex with the same gender, no evidence at all, and you can lock them all up?

    I suppose you’re right, goes hand in hand with a harsh and paranoid migration system.

  35. Posted December 19, 2009 at 9:51 am | Permalink

    Prince William should not come to Australia on Australia Day

    http://www.indymedia.org.uk/en/regions/world/2009/12/443607.html

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