Dutton uses visas as second criminal sentence
I meet Margaret Atem outside a fish and chip shop in Melbourne’s south-east. We are ushered into the shop, which is adorned with South Sudanese and Australian flags, and seated in the back room. The owner, of South Sudanese heritage, is wearing a bucket hat with the words “Aussie, Aussie, Aussie” printed on it.
Before we begin our interview, two women interrupt us. Word has spread about the topic of our conversation and these women tell me they are in a similar predicament. They ask for my number so I can speak to them separately.
Soon after they depart, Margaret begins to tell me about her brother, Issac. Lawyer Nyadol Nyoun translates from Dinka to English as Margaret speaks.
Issac Gatkuoth was born in Sudan before moving with this family to Egypt, where they spent time in refugee camps. A few years later, they were granted humanitarian visas for Australia.
Now 20, Issac arrived in Australia along with his older siblings when he was nine years old. Margaret says he applied for Australian citizenship a few years ago, but he was denied and instead remained as a permanent resident. Other members of the family have successfully obtained their Australian citizenship.
Margaret says that about the age of 15, her brother got involved with the “wrong crowds”. He engaged in anti-social behaviour and took drugs.
“I was quite surprised when all of this happened,” she says. “He was quite normal. He would come home and eat with us and get ready for school. I was quite surprised when I found out about the things he was accused of.”
Issac became an ice addict and suffered from post-traumatic stress disorder. He started getting into trouble with the law in 2015 and by the end of May 2016 he was convicted of theft, carjacking and drug possession. He was sentenced to serve 16 months.
In the course of the carjacking, a shotgun was pointed at the driver, a young man named Sam Newman. Months later, Newman would take his own life. His mother and the Herald Sun blamed Issac. His mother would tell the paper that Issac had “forfeited his right to remain in Australia”.
There is a petition online calling for his deportation that has garnered more than 16,000 signatures.
Margaret shows me a photo of her brother and I recognise his face, which was splashed on the front pages of the Herald Sun during the height of the so-called Apex Gang coverage. He was described as a “leader of the pack”. After the paper revealed he was nearing release, Home Affairs Minister Peter Dutton’s department cancelled his visa. In December, he was transferred to the detention centre on Christmas Island where he is awaiting deportation.
“There are many of them,” Margaret says of the men like her brother on Christmas Island. “More than nine South Sudanese men are there.”
These men have served jail sentences and been punished to the satisfaction of the courts. But they are now being held indefinitely, with the expectation they will be deported. This is a kind of double punishment: meted once by the courts, and then by the minister.
According to Margaret, her brother failed the character test and although he has tried to appeal Dutton’s decision to cancel his visa, the minister has refused to reinstate it. Margaret says he is considering re-appealing that decision.
Issac Gatkuoth’s visa was cancelled under section 501 of the Migration Act 1958, which gives the immigration minister the 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 data from the Department of Home Affairs, the new department responsible for immigration, 1284 visas were cancelled under s501 in the past financial year, up 30 per cent from the previous year.
The department says the dramatic increase in the cancellations is due to amendments made to the legislation in 2014, including broadening the minister’s powers to refuse or cancel a visa on character grounds.
Of the 1284 visas cancelled in the past financial year, New Zealanders made up the majority, with nearly 700. Sudanese migrants came in fourth, with 37 cancellations.
Appearing before senate estimates last month, the assistant commissioner of Australian Border Force, Kingsley Woodford-Smith, said that of the 334 people on Christmas Island, 39 people had their visas cancelled under s501.
Woodford-Smith added that of those who had their visas cancelled, “there are murderers, rapists and people who have committed grievous assaults. It’s a very wide range of fairly heinous crimes.”
Anthony Kelly, executive officer of the Flemington and Kensington Community Legal Centre, says Issac Gatkuoth’s story isn’t surprising. “We have a number of clients in that situation.”
Kelly says he has seen an increase in the number of young people from largely Horn of Africa backgrounds seeking legal advice while facing deportation after their visas were cancelled under s501.
He says cancelling visas under s501 is not a valid criminal justice response.
“It’s being used as a punitive and social control response against certain populations for political reasons. It has no deterrence impact, similar to other punitive responses, such as the death penalty and mandatory sentencing. All the studies and research show there is no deterrence impact,” he says.
In its written submission to the parliamentary inquiry into migrant and settlement outcomes in January, the Australian Human Rights Commission recommended that s501 “not be used as a means to address ‘anti-social behaviour’ amongst young people from migrant and refugee backgrounds”.
The commission has previously raised concerns that decisions to refuse or cancel visas under s501 may lead to breaches of Australia’s international human rights obligations, including that of non-refoulement.
Many South Sudanese people were born in Sudan before the creation of the independent state today known as South Sudan. The young country has been in the grips of a civil war since 2013.
Refugee lawyer David Manne represents clients from South Sudanese backgrounds, whose visas have been cancelled under s501.
“We’ve been providing assistance to quite a significant number of people who have been affected by these character cancellation laws and changes, and that includes some men and youth of Sudanese background who came here as refugees,” Manne says.
Manne argues that the increase in cancellation of visas of people – including refugees – under these laws is concerning.
“There’s no dispute that some of these people have committed offences, and that laws should aim to protect the Australian community,” he says. “Those laws need to be fair and proportionate, not excessive and draconian, as these are operated.”
In a statement to The Saturday Paper, the Department of Home Affairs said “the Australian Government takes seriously its responsibility to protect the community from the risk of harm arising from non-citizens who choose to engage in criminal activity or other serious conduct of concern”.
The department said decisions are made regardless of nationality. It said that in accordance with Australia’s international human rights law obligations, “Australia does not remove foreign nationals to their country of origin where it would be inconsistent with Australia’s protection obligations, including that of non-refoulement.”
Manne says that because of those obligations, after serving their sentences many such people are instead confined to indefinite detention.
“These people are being incarcerated on a remote island with no end in sight. It’s resulting in people being locked up – potentially forever – not by the ruling of a court, but by the hands of a politician, which undermines the fundamental protections of liberty under the rule of law,” he says.
“In Australia, we have these laws of mandatory detention and, together with these draconian cancellation powers, are resulting in people having this double punishment imposed on them at the discretion of a minister.”
Kelly agrees. “Deportations represent a form of punitive justice that is essentially extrajudicial. It is outside the court systems. It means people are essentially punished twice – double punishment,” he says.
“It means that someone who is facing court for an offence that warrants a jail term of greater than 12 months, the degree in which they’re punished depends on their visa status more than any other factor. Two people facing court for exactly the same offending behaviour … someone with Australian citizenship would be sentenced to 12 months, the other person, simply due to their visa status, would be sentenced to what is essentially a lifetime exile from family and support structures.”
Kelly says there are parallels between the death penalty and deportations.
“Like the death penalty, deportations are essentially racialised. They target communities that are, by their nature, racialised already. Immigrant communities are impacted the most by these laws. Like the death penalty, they have a permanence about them – exile from Australia, deportations – and in far too many cases can result in death and, furthermore, the possibility of a judicial error, particularly in these cases. The potential that we will be deporting people who are innocent of the crime that they are accused of is very real.”
Manne is calling for a review of the laws, arguing that the punishment is disproportionate to the character issues at stake. He says the current laws limit the right to a judicial review, even if the decision goes through the appeals process.
“The rights of judicial review are so limited that in practice what we’ve seen is that successful appeals in the courts of these decisions have resulted merely in the minister cancelling [visas] while the person remains indefinitely detained.”
Manne argues that there needs to be an end to the current approach underlining the criminal justice system, which he says assumes people cannot be rehabilitated. “Many of these people have grown up in Australia. They have friends and family here and face the prospect of being sent back to places where they have no support.”
Kelly backs the call for a review of the laws. “It was an unintended consequence of the legislation when it was first brought through that it would result in permanent lifetime detention without any further appeal. It’s a horrific human rights consequence, badly thought through and highly political legislation.”
Earlier this month, the government announced an inquiry that is set to examine the review processes associated with visa cancellations made on criminal grounds. It will also look at the scope of the Administrative Appeals Tribunal to review ministerial decisions.
The inquiry’s chair is Jason Wood, a Liberal MP and former policeman. He has been vocal about what he’s referred to as “criminal immigrants” in the past and has called the intake of South Sudanese refugees as a “failed integration”. Before the inquiry, he said: “There we’ve seen the overturned decisions for rapists, murderers, home invaders and carjackers. The victims must come first, not the perpetrators on visas ... I don’t want to pre-empt the inquiry but it’s fair we look at this process and how it’s working.”
Margaret Atem says she feels her brother has been made an example of, despite his having served a sentence for his crimes.
“I’m very angry and upset. His face is plastered across the newspapers, yet when another young person murders someone, the reaction isn’t the same,” she says.
“I’m losing my mind from this whole process.”
She has started a petition hoping to halt Issac’s deportation. It has thus far received some 700 signatures.
As we prepare to wrap up the interview, her phone rings. Another woman like Margaret is on the line, asking if I can share the story of a relative of hers in a similar predicament.
This article was first published in the print edition of The Saturday Paper on Mar 31, 2018 as "Dutton uses visas as second criminal sentence". Subscribe here.