Child sex offenders, drug dealers and violent criminals out in visa blitz

The federal government has cancelled the visas of child sex offenders, drug dealers and violent assailants in urgent decisions to overturn tribunal rulings that let them stay in Australia, ahead of tougher rules to deport convicted criminals who are born overseas.

Immigration Minister Andrew Giles signed more cancellations at the weekend to bring the total to more than 20 after days of Coalition attack on a federal rule that allows “tolerance” for foreign-born criminals with strong links to the Australian community.

Immigration Minister Andrew Giles has cancelled 20 visas in response to AAT decisions.Credit: Alex Ellinghausen

The government is preparing to overhaul the regime within days by dumping the controversial rule, known as Ministerial Direction 99, to put the greatest priority on community safety and to reduce the importance of links to Australia.

While the government expects criticism from New Zealand because more criminals born in that country will be deported there under the tougher rules, ministers want to redraft the rule to remove key provisions regarded as being lenient towards convicted felons.

“What we’re doing now is making it absolutely crystal clear for the AAT and departmental officials interpreting it, that community safety is to be the number one priority, more than anything else,” cabinet minister Murray Watt told ABC’s Insiders program on Sunday.

The Coalition has blamed Labor for dozens of decisions by the Administrative Appeals Tribunal that cited Direction 99 as a factor in letting applicants stay in Australia despite decisions by the Department of Home Affairs to deport them because of their criminal convictions.

Coalition home affairs spokesman James Paterson told Sky News on Sunday that Prime Minister Anthony Albanese had refused to take responsibility for Direction 99 in a way that was “reminiscent” of former Liberal prime minister Scott Morrison’s “I don’t hold a hose” comment during the Black Summer bushfires.

But the tribunal has also cited earlier rules, including Direction 90 under the previous Coalition government, to overturn similar decisions by the Department of Home Affairs to cancel visas and seek to deport criminals.

Cabinet minister Murray Watt said community safety would be prioritised above all other factors.Credit: Alex Ellinghausen

A key concern about Direction 99, which was signed by Giles in January last year, is that it made the “strength, nature and duration of ties to Australia” a primary consideration in visa decisions, unlike earlier directions under the Coalition.

In the latest example, the tribunal ruled last Thursday that the department was wrong to cancel the visa of an Assyrian Christian known as LMSL, who was born in Iraq in 1984 and has been guilty of supplying prohibited drugs, larceny and assault occasioning actual bodily harm.

The tribunal said LMSL should have his visa restored because of his ties to Australia and the risk of harm if he was deported to Iraq.

In a decision last Tuesday, the tribunal said an Iraqi man known as PHGY should have his visa restored despite four child sex offences, including one against a cognitively impaired child who was 15 years of age.

The tribunal said PHGY should regain his visa because of his ties to Australia as well as family reasons, saying: “It is in the best interests of the applicant’s three young daughters that his visa be restored so he can remain in a real and practical way their father.”

The minister can overturn these and other AAT rulings, forcing the applicants to go to the Federal Court if they want to make another attempt to stay in Australia.

The government would not comment on individual cases, given that decisions often go before the courts, but confirmed that Giles had cancelled more than 20 of the visas that were recently restored by the tribunal in a series of controversial cases.

As with earlier directions, however, the Labor rule named other primary considerations, including the protection of the Australian community from criminals, whether the applicant engaged in family violence, the best interest of minor children and the expectations of the community.

The rule under both main parties has said that officials should show a “higher level of tolerance” for criminals with longstanding ties to Australia.

The government did not change Section 501 of the Migration Act, which automatically cancels a visa if someone has been sentenced to 12 months or more in prison or has been guilty of sex offences involving a child.

Federal officials have responded to hundreds of applications from convicted criminals to overturn mandatory decisions to cancel their visas.

In the year to June 2019, for instance, when Opposition Leader Peter Dutton was home affairs minister, the department revoked 235 of these visa cancellations to show leniency to the convicted criminals. This meant that 41 per cent of the automatic cancellations were revoked by the department.

In the year to June 2023, under Home Affairs Minister Clare O’Neil and with Giles as immigration minister, the department revoked 144 cancellations to show leniency in the same way. This meant 28 per cent of the automatic cancellations were revoked.

In the first half of this financial year, the department revoked 71 cancellations, or 23.8 per cent of the total.

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