Labor's re-drafted Ministerial Directive on visa cancellation is misguided

Albanese's re-drafting of Ministerial Direction 99 with a zero-tolerance approach will conjure up more problems than solutions, Dr Abul Rizvi writes.

PRIME MINISTER Anthony Albanese has announced Ministerial Direction 99 will be re-drafted to make it clear that the highest priority is to be given to the protection of the Australian community over the length and depth of any links that someone has to the Australian community.

On the surface, that sounds eminently sensible until we dig into what that means in practice.

The crucial point missed in this debate is that criminal deportations operate on the basis of mutual cooperation between nations. The system only works if nations agree to take a common-sense approach to criminal deportations.

If one nation abuses mutual cooperation, inevitably other nations will retaliate as New Zealand has already hinted at doing.

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A bit of history

From around the late 1990s, Australia cranked up its policy on criminal deportations by introducing objective criteria in s501 of the Migration Act 1958 that determined who would be considered as being of bad character and thus subject to visa refusal, or cancellation if they were already in Australia — the Act included provisions for this to be waived in compelling and compassionate circumstances.

Those changes also introduced a power for the Minister, acting personally, to override a decision of the delegate or the Administrative Appeals Tribunal (AAT) and cancel a visa on character grounds without having to provide any natural justice.

That power exists today and is currently being exercised by Immigration Minister Andrew Giles with respect to a number of cases that have been raised in the media and in Parliament. That may include criminals who were released into the community when Peter Dutton was minister.

We do not know how often Peter Dutton exercised that power when he was Minister for Home Affairs even though around 1,300 character cancellations were revoked by either his delegate or the AAT during his time as Minister. Most of those people would currently be living in the Australian community.

Criminal deportation numbers increased markedly from the early 2000s until the case of Robert Jovicic, who came to Australia with his Serbian parents when he was two years old after having been born in France.

Despite having never lived in Serbia – and having spent over 30 years living in Australia – Jovicic was deported to Serbia after committing a series of drug-related burglaries.

Serbia did not accept that Jovicic was a Serbian citizen even though they allowed him entry. That left Jovicic stateless with no access to work or welfare. He didn’t speak a word of Serbian and didn’t know a single person in Serbia.

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There was a media outcry after he started spending nights on the steps of the Australian Embassy in Belgrade, desperate for food and shelter.

The media pressure on Immigration Minister Amanda Vanstone became too great and she granted him a visa to return to Australia.

Vanstone said:

“Australians don't want someone who's lived a long period of time here and got connections here to end up destitute overseas... even if, in large part, that's under their own hand. So I don't think Australians really want either outcome here but we have to have one or the other."

From then until mid-2019, a more common-sense approach to criminal deportations was used.

Mutual cooperation in criminal deportations

Vanstone’s comments highlight the dilemma in re-drafting Ministerial Direction 99.

While the Prime Minister has said Ministerial Direction 99 will be re-drafted solely on the basis of Australia’s national interest, blindly following a policy of zero tolerance on criminal deportations as advocated by Peter Dutton is actually not in Australia’s national interest.

A quick look at what happened when we tried to adopt a policy of close to zero tolerance on criminal deportations between 2019 and 2022 highlights the problems.

Under that policy, the number of character cancellations that were not revoked following a request for revocation increased from 332 in 2018-19 to 450 in 2019-20; 438 in 2020-21 and 434 in 2021-22.

The number that were revoked fell from 235 in 2018-9 to 252 in 2019-20; 143 in 2020-21 and 38 in 2021-22.

Peter Dutton would celebrate that outcome. But that meant the number of people in immigration detention who had their visa cancelled under s501 increased rapidly.

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In just the month of July 2019, the number in detention increased from 353 to 569. That number continued to rise to almost 940 by January 2022.

Part of the increase would have been due to major reductions in immigration compliance staff plus the difficulties of deporting people during COVID-19. However part of the increase would have been due to increasing non-cooperation from receiving countries, particularly New Zealand.

If we adopt a zero-tolerance approach to criminal deportations, mutual cooperation will dry up and we will end up with a large number of people who have had their visa cancelled under s501 — who are in detention and cannot easily be deported.

And we know what the High Court thinks about keeping people in detention indefinitely.

We should also remember there are currently around a million Australian citizens overseas, many of whom have lived overseas for much of their lives. Some of these people, such as the Christchurch mass murderer, are in prison for serious crimes.

A zero-tolerance approach to criminal deportations simply isn’t in the national interest no matter how much Peter Dutton demands it.

Is a common sense approach too much to ask?

Dr Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration. You can follow Abul on Twitter @RizviAbul.