Migration Act changes could see more foreign born criminals deported

The Morrison Government has a new plan to rid Australia of foreign-born criminals. See the list of who they want to deport.

The Federal Government will try again to push laws through the parliament making it easier to deport sex offenders and other violent criminals who were born overseas.

The legislation, which has been stalled for more than two years, will be reintroduced to the Senate, with the Government arguing it was required to better protect women and children who had been victims of foreign-born thugs and sex offenders.

Under current laws, a foreign-born citizen sentenced to two years or more in jail for an offence can have their Australian visa cancelled or refused, resulting in their deportation from Australia.

Under the changes proposed by the Government, those convicted of serious offences which carry a jail term of two years or more would be subject to deportation, even if the courts sentenced them to less than 12 months’ jail.

Examples cited by the Government include a Mauritian citizen, Jean Marie Clarel Amoorthum, who received an eight-month jail term in Victoria for following a woman he saw on the street to a house, then threatening her with a knife to her throat in 2006. He was able to remain in Australia.

In New South Wales, Indian resident Naysar Lunavat was convicted of beating and sapping his female flatmate in 2017. Hours later, he flew out of Australia, but later pleaded guilty and received a 12-month good behaviour bond. In 2020, he was refused an Australia visa, but the decision was overturned by the Administrative Appeals Tribunal.

Immigration Minister Alex Hawke says the changes will make Australia safer.

The move to reintroduce the bill also comes after courts began to establish precedent cases in which deportation was factored into potential sentences, resulting in jail terms of less than two years being handed down in Victoria, Queensland, Tasmania, the ACT and South Australia.

The Government it seeking broader discretionary power to cancel or refuse visas on character grounds based on what the sentence available was, rather than the sentence which was imposed. This would capture those who received discount due to plea bargains of guilty pleas, as well as those who received a lesser term because the court did not want to trigger deportation.

Immigration Minister Alex Hawke said the Morrison Government “takes very seriously the protection of Australians from dangerous, non-citizens involved in criminal conduct.’’

“Australians expect us to act swiftly to remove such people, and the Government is working to strengthen its removal powers for this reason,’’ he said.

Kristina Keneally does not support the legislation.

Mr Hawke urged Labor to support the Bill, saying they had blocked it since 2019, which created an “ongoing threat to our community, and to women and children in particular.’

Holding an Australian visa is a privilege that dangerous and violent non-citizens do not deserve. Anthony Albanese needs to back these new laws this week for the safety of the community – or explain to all Australians why he will not,’’ he said.

Labor does not support the Bill in its current form, with Opposition Home Affairs spokeswoman Kristina Keneally writing to the Government urging them to remove retrospectivity, ensure that low-level offending would not result in a visa cancellation, and give extra consideration to the time New Zealanders had spent in Australia before ordering their deportation.

The relatively high number of Kiwis deported from Australia has triggered diplomatic tension between the two countries.

Senator Keneally said the Migration Act already gave the Immigration Minister broad powers to cancel a visa based on character grounds or criminal acts.

She said the Bill had been sitting on the Senate notice paper for 1090 days and questioned whether the Government was playing wedge politics.

“I am looking forward to the opportunity to meet with the Minister soon to discuss what initiatives the Government is considering, and what amendments the Government are prepared to make to address the significant stakeholder and community concerns about the Bill,’’ she said.

The Migration Amendment (Strengthening the Character Test) Bill 2019, could go to the Senate as early as Monday night.

Examples of real cases where the Government is not able to act under existing laws

QLD

Mr X is a permanent visa holder in Australia. Mr X was convicted in Queensland of crimes including sexual assault and common assault, for which he received a two year good behaviour order. Mr X has not been sentenced to imprisonment of 12 months or more and, under the current character provisions, he does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr X would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of 14 years.

New South Wales

Mr Q is a temporary visa holder in Australia with an ongoing application for a permanent visa. Mr Q has been convicted in New South Wales of violent assault related offences, for which he has received fines, good behaviour bonds and intensive correction orders. Mr Q has not been sentenced to imprisonment of 12 months or more and, under the current character provisions, he does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr Q would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of five years.

Victoria

Mr Y is an adult permanent visa holder in Australia who has links to youth gangs. Mr Y has a criminal history which includes being found guilty without conviction for various theft related offences, for which he received a youth supervision order. As a result of further offending, he was convicted of a violence offence in Victoria and sentenced to a period of four months jail. Mr Y has not been sentenced to a term of imprisonment of 12 months or more and, under the current character provisions, does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr Y would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of five years.

Australia wants to deport foreign born criminals easier.

Tasmania

Mr A is a permanent visa holder in Australia. Mr A has been convicted in Tasmania of sexually related offences, including indecent assault and attempted indecent assault. Mr A has not been sentenced to imprisonment of 12 months or more and, under the current character provisions, he does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr A would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of 14 years.

Western Australia

Mr B is a permanent visa holder in Australia. Mr B has been convicted in Western Australia various criminal offences, including carried a prohibited weapon. Mr B has not been sentenced to imprisonment of 12 months or more and, under the current character provisions, he does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr B would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of 14 years.

South Australia

Mr C is a permanent visa holder in Australia. Mr C has been convicted in South Australia of violent assault related offences, including aggravated assault against child or spouse. Mr C has not been sentenced to imprisonment of 12 months or more and, under the current character provisions, he does not objectively fail the character test on the basis of his criminal history.

Under the proposed designated offences ground in the Migration Amendment (Strengthening the Character Test) Bill 2019, Mr C would objectively fail the character test as he has been convicted of a violent offence, which is punishable by imprisonment for a maximum term of 3 years.