I wanted to touch on this earlier but been flat out until now.
Just before Christmas last year, there was a major federal court decision that resulted in hundreds of non-citizen convicted criminals being released from immigration detention into the Australian community, largely unbeknown to the public being Pearson vs Home Affairs 2022.
You can read the full findings here.
Essentially, a woman by the name of Karen Pearson who had received multiple sentences for separate criminal offences had her visa cancelled under Section 501, as she had aggregated a total period of more than 12 months imprisonment, making her liable for mandatory visa cancellation under Section 501 of the Migration Act. Generally speaking, anyone who is sentenced to 12 months or more is liable for cancellation under this section.
For context, the other major visa cancellation power Home Affairs has for criminal matters is Section 116(1)(e) – safety and good order. However, decisions under this power can be appealed multiple times whereas anything under S501 is generally appeal for revocation to the minister or high court – from experience both avenues generally uphold the original decision as s501 is the strongest cancellation power available (apart from Section 33 – the direct Ministerial powers used to cancel Novak Djokovic).
TL;DR version but basically, Justice Sarah Derrington ruled that migrants that have been sentenced to an aggregate of 12 months or more were incorrectly cancelled due to a misinterpretation of the word ‘aggregate’ and the original cancellation decision was deemed null and void. This meant anyone cancelled under S501 for aggregate sentences of imprisonment and in immigration detention under S.189 had been unlawfully detained and were to be released immediately. You’re talking people convicted of armed robbery, grievous bodily harm, sexual assault, domestic violence offences, rape – all that stuff.
In short, a total clusterfuck.
In response, the government passed an amendment to the Migration Act on 17th February 2023 that confirmed aggregate sentences could be explicitly taken into account when using s501 powers. As a result, all of those cases affected by the federal court ruling that were released into the community are now basically liable for detention again because the original cancellation decision now stands.
Yes, a real total clusterfuck.
I don’t know the exact numbers released but I’m told by my legal sources in Canberra that the number of criminals released into the community is in the 200-300 ball park. I’m further told that the AFP and ABF are currently running around spending time, energy and resources re-detaining these people at astronomical cost to the tax payer, but what else is new in Canberra?
I mean, what can you say really? It’s one of the worst decisions I’ve seen a federal court judge make and I’ve seen some doozies. Derrington is an industrial relations lawyer by trade so she’s way out of her league on this one, and quite frankly, an idiot shielded from the consequences of her decisions.
Andrew Giles and Clare O’Neil have to be the worst immigration and home affairs ministers of all-time in record time. The other thing of note is that there was total media silence on this, except for a buried SMH fluff piece, but that’s par for the course.
There’s been quite a few other immigration developments which I’ll comment on when I have the next opportunity, but all I’ll say is I’ve never seen the immigration portfolio handled so poorly, which leads me to believe it’s being done intentionally and that they’re deliberately breaking the system to rebuild it into god knows what.
Given Albanese’ recent jaunt to India to sell citizenship, I think we know where this is headed.
Guest article from barrister Mark who has served a sentence of over 20 years in the legal world including migration and criminal law