The fate of a group of South Sudanese men awaiting deportation from detention on Christmas Island is unknown, after the closure of the island’s detention centre. By Santilla Chingaipe.

Detained South Sudanese future unclear

During the height of the panic about the so-called Apex gang, Issac Gatkuoth’s face was routinely splashed across the front page of the Herald Sun. The paper described him as “a thug”, the “leader of the pack”. He was blamed for the 2017 suicide of Sam Newman, a teenager he had pointed a gun at during an armed robbery in 2015.

“Gatkuoth, who had not slept for two weeks, was high on ice when he pointed the shotgun at Mr Newman,” the paper reported in a piece that quoted Newman’s mother, Denise Scott, at length. “My life’s still in turmoil, and it’s because of him. I know there were other factors but he [Gatkuoth] played the biggest part,” she said. “After seeing what’s going on out there, they shouldn’t get a second chance. They are destroying people’s lives.”

Last year, after the Herald Sun reported on Gatkuoth’s impending release from youth detention, his visa was cancelled by the Home Affairs Department on character grounds under section 501 of the Migration Act.

As The Saturday Paper reported exclusively at the time, the department planned to deport the then 20-year-old, despite the fact he had already served his sentence of more than a year for theft, carjacking and drug possession.

After his visa was cancelled, Gatkuoth was transferred to Christmas Island, where he was held awaiting deportation until the detention centre’s closure a few weeks ago. In March, his sister Margaret told me Gatkuoth wasn’t the only young man of South Sudanese descent on the island.

“There are many of them,” she said. “More than nine South Sudanese men are there.”

These men had also served jail sentences and had been punished to the satisfaction of the courts. But they were now being held indefinitely, with the expectation they would be deported – a kind of double punishment, meted out once by the courts and then by the minister.   

The recent closure of the Christmas Island facility has prompted questions about what happens next to these men.

Concerns have been raised that decisions to refuse or cancel visas under s501 may lead to breaches of Australia’s international human rights obligations, particularly that of non-refoulement, a principle that protects people from being returned to a country where they have reason to fear persecution.

Many South Sudanese people living in Australia were born in Sudan before the creation of the independent state known today as South Sudan. The young country has been in the grips of a civil war since 2013. Gatkuoth has lived in Australia since he was nine. His family fled South Sudan when he was a child and spent a few years in refugee camps in Egypt before being granted humanitarian protection in Australia.

According to Margaret, Gatkuoth has been transferred from Christmas Island to Villawood Immigration Detention Centre, outside Sydney. The location of the other men of South Sudanese origin who were being held on Christmas Island is unknown.

Refugee advocates claim the detainees previously held on Christmas Island have been sent to Villawood, Melbourne Immigration Transit Accommodation and the Yongah Hill Immigration Detention Centre in Western Australia.

In a statement to The Saturday Paper, a spokesperson from the Department of Home Affairs says North West Point Immigration Detention Centre on Christmas Island was moved into contingency from September 30, 2018 because of a decrease in the number of boat arrivals.

“All detainees from North West Point IDC have been transferred to other facilities. For operational reasons, a breakdown of detainee movements is not available,” the statement said.

The questions surrounding the fates of these young men come as the Morrison government has introduced legislation into federal parliament seeking to amend section 501 of the Migration Act. The proposed changes will make it mandatory for visas of minors who commit a serious offence to be cancelled by the department – a decision previously only meted out by the home affairs minister. The amendments would also mean that anyone found guilty of an offence for which they can be jailed for two years or more – even if they aren’t given a jail term – can have their visa cancelled.

Since Scott Morrison’s ascension to the prime ministership in August, the Department of Home Affairs has, in addition to Minister Peter Dutton, also included David Coleman as minister for immigration, citizenship and multicultural affairs and Linda Reynolds as assistant minister for home affairs. Last week the department secretary, Mike Pezzullo, told the Senate’s legal and constitutional affairs legislation committee that all three ministers have discretionary powers under the Migration Act. “In a practical sense, Mr Coleman has the heaviest load, or burden if you will, of decisions,” he said, “but each of the ministers, including the assistant minister, can take decisions under the Migration Act, because they’re all sworn to administer the act.”

Under the current laws, the ministers have the discretionary power to cancel or refuse a visa on character grounds. A visa may be cancelled if the minister reasonably suspects the visa holder fails the “character test” – a broad definition that includes everything from having a substantial criminal record to escaping immigration detention to being suspected of engaging in future “unacceptable conduct”. A conviction of more than 12 months is considered a “serious offence”.

According to the most up-to-date data from the Department of Home Affairs, 1915 visas were cancelled or refused under s501 on character grounds in the 2016–17 financial year, and 682 were cancelled or refused in the financial year to December 2017.

The proposed amendments to the act do not account for age, they apply to anyone who has been found guilty of a crime and jailed for less than 12 months – including those under 18 years old.

The changes stem from recommendations made by an inquiry into migrant settlement outcomes by the joint standing committee on migration late last year. The committee’s chairman, Liberal MP Jason Wood, is a former policeman who has been vocal about what he’s referred to as “criminal immigrants”. He says the changes would eliminate what he sees as a loophole in the current laws.

“The difference is, at the moment [mandatory cancellation of a visa] is only for a person who commits a sexual offence against a child or they go in jail for 12 months or more,” Wood says. “This change is not requiring the person to go to jail – they can be convicted of the offence.

“There’s only been – to my knowledge – four or five minors who’ve had their visas cancelled. There’s one in particular from New Zealand who committed very violent home invasions and had his visa cancelled.”

The shadow minister for immigration and border protection, Shayne Neumann, says Labor will look at the detail of the government’s announcement.

“Labor strongly supports the cancellation or refusal of visas on character grounds under section 501 of the Migration Act,” Neumann says. “If the immigration minister suspects that a non-citizen does not pass the character test, or there is a risk to the community while they are in Australia, they can use these powers to cancel their visa.”

The proposals are the latest in a series of measures introduced by the Coalition to crack down on crime committed by foreign nationals.

The Greens’ immigration and citizenship spokesperson, Nick McKim, says the government is increasingly blurring the lines between the immigration and the criminal justice system.

“People should not be deported to face danger in other countries. If they have broken the law in Australia, then they should face the punishment determined by our courts,” he says.

Senator McKim says cancelling visas is not an appropriate criminal justice response.

“People who have lived in Australia for many years are part of the Australian community – whether they hold citizenship or not. If people commit crimes here, then it is for Australian courts to deal with,” he added.

McKim says there is a complete lack of transparency within Home Affairs, particularly when it comes to immigration detention.

“It’s a secret extrajudicial detention system which needs the disinfectant of sunlight shone on it,” he says. “As a signatory to the Operational Protocol to the Convention against Torture, the government needs to do far more to ensure that people in immigration detention are treated humanely.”

Despite Labor’s support for s501 and the immigration minister’s powers to cancel visas, Neumann has also cast doubt over previous decisions made by Peter Dutton to cancel visas when he was in charge of the immigration portfolio. 

“Let’s not forget – there is significant doubt over whether Dutton is even qualified to sit in parliament – this casts legal doubt over every decision he has made as minister, including cancelling the visas of serious criminals,” Neumann says.

As for the fate of Issac Gatkuoth, his sister Margaret remains hopeful he’ll return home soon.

“When they arrived in Sydney, they called us … He’s fine and things are better,” she said. “We hope he’ll get out now that he’s back in Australia.”

This article was first published in the print edition of The Saturday Paper on November 3, 2018 as "Failed status".

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Santilla Chingaipe is a journalist and documentary filmmaker.

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