Victorian Legal Aid in deportation fight

The commonwealth wants stronger visa cancellation powers.

Immigration Minister Alex Hawke. Picture: Martin Ollman

Eight years ago, Van Phat Hua took a large knife from the kitchen, threatened to kill his pregnant wife, poured petrol throughout his home and lit it. His son and two daughters were also in the house, although the family were saved by the fire brigade.

Six years later, a man known only as AIX20 was given an adverse security assessment by the Australian Security Intelligence Organisation. He too had his visa cancelled. Both men, however, were later represented by Victorian Legal Aid in their attempts to overturn the decision of Home Affairs officials to cancel their visas and deport them.

In fact, new government figures obtained by The Australian show the VLA represents the vast majority of cases – 66 per cent in the financial year ending June 2021 – where legal aid has represented a party in character-related visa cancellation litigation. That’s despite Victoria accounting for only 19 per cent of detainees in detention facilities.

The government is concerned VLA’s resources aren’t being spread fairly, especially given these cases have a limited prospect of success.

The VLA’s aggressive approach has, on at least one occasion, earned it a reprimand from the courts; in May the Supreme Court found one of its solicitors was “forum shopping”. That prompted an unreserved apology from VLA chief executive Louise Glanville.

And assistance provided in other areas, such as minor ­criminal matters and minor ­family and children’s matters, have also fallen, by 23 per cent and 16 per cent respectively, ­according to the legal service’s latest annual report (for the year ending June 2020). But the government’s character-test visa cancellations, known as s501 cancellations, are controversial.

The commonwealth has accelerated its visa cancellations program and is expected to soon hit 10,000 cancellations since the Coalition came to office in 2013.

It is trying to further bolster its powers, having been previously blocked by Labor and the Greens, with migration lawyers warning this will see a further surge in ­deportations.

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill is due to be reintroduced this week because the government argues it needs stronger powers to refuse or cancel visas of non-citizens convicted of serious crimes punishable by two years’ imprisonment.

For every cancellation reason, there are usually mitigating factors. Hua, who was first convicted of armed robbery in 1989 and would make “regular appearances” in court for crimes ranging from theft to burglary, assault and trafficking heroin, suffered serious mental health issues. He had repeatedly expressed remorse for threatening to kill his wife.

In the case of AIX20, even Home Affairs officials accepted there was a real chance of serious harm if he was returned to Iraq “on the basis of his religion as a Sunni Muslim and his history of being detained by US forces on allegations of undertaking terrorist activities”.

Carolyn Graydon, principal solicitor at the Asylum Seeker Resource Centre, told The Australian the visa cancellation program was “manifestly unjust” and caused “catastrophic and often irreversible harm to individuals, to families, and critically, to children”. “Many people facing character issues do not, or cannot, engage with the process, or have immense difficulty doing so,” said Dr Graydon.

“Of those who do engage at first, roughly 65 per cent of people entitled to seek review of a s501 decision in the Administrative Appeals Tribunal do not do so.

“This equates to thousands of people who have had their right to remain in Australia removed without so much as an interview. Almost without exception, they must fight their case from detention, often from a remote location,” she said.

Earlier this year, Federal Court Chief Justice James Allsop recognised the barriers migrants face in defending the cancellation or their visas, issuing an order that they would be appointed pro bono counsel when appearing in the court if they did not have legal representation.

Murdoch University migration law expert Mary Anne Kenny said the consequences of cancellation were profound. “Many that come here have a very traumatic upbringing. They then live their life here but because of their background end up in the criminal justice system, have their visa cancelled and get put in long term detention,” she said. “It’s problematic because many can’t return to their home country because they would face prosecution. Do you just keep them in detention forever when they finish their prison sentence?”

Another man represented by Victorian Legal Aid was a Turkish citizen who had his visa cancelled after he inflicted over 100 separate injuries against his female partner with a three-pronged garden fork and a large screwdriver. His appeal to overturn the decision was later dismissed by the Federal Court.

Rowan McRae, executive director, Civil Justice, Access and Equity at Victoria Legal Aid, said it represented people in court on visa cancellation matters when it could be reasonably argued there has been an error of law in applying the character test. “It is important to ensure the test is being applied in a lawful manner. The migration scheme provides extensive discretionary powers to the minister and her delegates to refuse or cancel a visa on character grounds,” Mr McRae said.

“This means appropriate checks and balances need to be in place so that all people affected by government decisions, whether they are citizens or not, can expect processes which are timely, fair and transparent.”

Dr Graydon said the real question was why other states and territories weren’t stepping up to assist in these cases as VLA Victorian Legal Aid had done.

Immigration Minister Alex Hawke said the government had introduced the legislation to strengthen its powers to remove visa holders who commit serious and violent offences quicker. “Anthony Albanese and Labor need to stop denying reality and support these laws for the ongoing safety of our community,” he said. “An Australian visa is a privilege that our laws must deny to those who pose a threat to the safety of Australians.”

Attorney-General Michaelia Cash said the government strongly believed in access to justice and would provide more than $2.3bn over five years for legal assistance services across the nation. “As such, the government expects these resources to be spread fairly, and commensurate to highest need,” she said.