No new direction as sanctuary stays for foreign criminals

A convicted child sex offender and a Lebanese man who was part of a large-scale drug operation have been spared deportation under reworked visa cancellation directions, in a significant test for Tony Burke.

Immigration Minister Tony Burke. Picture: NewsWire / Martin Ollman

A convicted child sex offender and a Lebanese man who was part of a large-scale drug operation have been spared deportation under reworked visa cancellation directions, in a significant test for new Immigration Minister Tony Burke.

Philippines-born Earl Sanchez was last year sentenced to three years’ imprisonment for aggravated sexual intercourse with a child, prompting the automatic cancellation of his visa.

The Administrative Appeals Tribunal has now found Sanchez should be allowed to remain in Australia after assessing his case under Direction 110 instructions recently introduced by Mr Burke’s predecessor, Andrew Giles.

A 39-year-old Lebanese man identified only as KCKJ also won a deportation reprieve under Direction 110, with the AAT citing the ongoing war in Gaza as a factor in its decision.

The Sanchez and KCKJ decisions have raised questions about the effectiveness of the Direction 110 changes that came into force late in June after Mr Giles scrambled to overhaul his previous Direction 99 order. The changes followed The Australian’s revelations that Direction 99 – which required decision-makers to make an offender’s ties to Australia a primary consideration when assessing whether they should be allowed to remain in the country – had led to a surge in the number of serious offenders having their visas reinstated.

Sanchez and KCKJ are the only two of six AAT cases assessed under Direction 110 to date who have succeeded in having their visa reinstated.

The new Direction 110 clarified that the safety of the Australian community was the government’s highest priority and the key principle of the decision-making framework.

The Sanchez and KCKJ decisions shows there is still scope for AAT members to allow serious foreign offenders to remain in the country.

Opposition home affairs spokesman James Paterson said the cases demonstrated that the rewritten ministerial direction was no more effective than Direction 99, calling for a return to the direction in place under the previous Morrison government and urging Mr Burke to take responsibility for those spared deportation.

“Unsurprisingly Direction 110 is working no better than Direction 99 because connection to the community remains a primary consideration, rather than a secondary consideration as it was under the previous government,” he said. “We warned the government this would happen. Tony Burke should use his authority as a new minister to urgently reverse Andrew Giles’s second failed direction or accept personal responsibility for every criminal spared deportation going forward.”

Sanchez moved to Australia in 2006 when he was nine, but left home at 13 due to a volatile home environment and his drug use.

According to the AAT decision, Sanchez was smoking marijuana in his apartment with a teenage girl and his housemate in January 2022 when he began rubbing the girl’s inner thigh. He then digitally penetrated her. His subsequent imprisonment prompted the mandatory cancellation of his visa.

AAT member Shane Evans found the presence in Australia of Sanchez’s three children and his strong ties to Australia weighed strongly in favour of revoking the cancellation. “I accept Mr Sanchez sincerely intends to play a positive parental role in the lives of his children and has the capacity to do so, and the primary consideration of the best interests of minor children weighs in favour of revocation,” Mr Evans wrote.

“Mr Sanchez has significant and close ties in the Australian community, and this consideration weighs heavily in favour of revocation. Having resided in Australia since age nine, Mr Sanchez would face substantial impediments in establishing himself without an existing support network. This consideration weighs strongly in favour of revoking the cancellation of his visa.”

KCKJ, meanwhile, had moved to Australia from Lebanon in 2018 when he was 33. Two years later, he was arrested for being involved with two others in the unlawful supply of MDMA and cocaine and was sentenced to four years and two months’ imprisonment.

The court found KCKJ was in a “subordinate” role, with the two co-accused each receiving much longer sentences.

AAT member Paul Fairall cited the “enormous weight of love and support” shown for KCKJ by his family as a significant consideration in his decision to allow him to remain in Australia and described the situation as a “second-chance case … that comes with little risk to the community”.

He also noted the instability in the Middle East amid the war in Gaza and ongoing travel warnings in place for Lebanon supported the reinstatement of KCKJ’s visa.

“My overall assessment is that while the protection and expectations of the Australian community weigh in favour of affirming the delegate’s decision, they do not press so heavily as to exclude countervailing considerations.

“This is so taking account of the Direction requiring the protection of the community ‘generally’ to be given greater weight than other primary considerations,” Professor Fairall wrote.

“The applicant’s ties to Australia, the best interests of his minor children, the likely delay in ongoing processing, and the extent of impediments he will face if removed all favour revoking the delegate’s decision.

Mr Burke as minister has the power to re-cancel any visa decisions made by the AAT, and a spokeswoman for the Department of Home Affairs confirmed that the minister would be kept informed of the tribunal’s decisions.

“Community safety is a key principle of the decision-making framework under ministerial Direction 110,” she said.

“The Department of Home Affairs works closely with the minister to ensure he is aware of AAT set asides for further consideration as appropriate.”

The Sanchez decision has been a topic of discussion among immigration lawyers, given it has shown cancellations can still be overturned under Direction 110.

Carina Ford Immigration Lawyers partner and migration specialist Dushan Nikolic told The Australian he was not convinced Direction 110 would make a substantial difference to how cases were considered by the AAT.

He said the clarification under Direction 110 that the protection of the Australian community should generally be given more weight than other primary considerations reflected what had previously been happening under earlier ministerial directions.

“The new direction simply confirms what has happened in practice, in my experience; it’s always been the case that one primary consideration could outweigh other primary considerations.”

Kinslor Prince Lawyers principal solicitor and migration specialist David Prince said the implementation of Direction 110 had tipped the scales further in favour of the government over the applicant. “The rhetoric, certainly out of the opposition when Direction 110 came into being, was there was no change and it’s not going to affect anything – I think that’s inaccurate and unfair,” he said.