Foreigner Allowed to Stay in Australia Despite Drug Supply Conviction

by Paul Gregoire & Ugur Nedim

The Department of Home Affairs outlines on its website that since amendments were made to the Migration Act 1958 (Cth) back in November 2014, the number of noncitizens who’ve had their visas cancelled on character grounds has increased by over 1,400 percent.

The Migration Amendment (Character and General Visa Cancellation) Bill 2014 amended section 501 of the Migration Act, so a noncitizen is automatically deported for any number of sentences that amount to 12 months or more, rather than the previous 24 months.

This change has seen increasing numbers of long-term residents being turfed out of the country due to the retrospective nature of the law, as well as the cumulative aspect of the 12 months prison time, which can see individuals having their visas cancelled due to multiple minor offences.

Today, around a third of all detainees held in onshore immigration detention are individuals awaiting decisions on their character ground deportation, or 501ers as they’re referred. And there have also been numerous cases where long-term residents have been deported to countries they have no ties to.

However, a visa cancellation appeal last month highlighted that despite the government’s harsh deportation regime, there are those at the tribunal who can interpret the laws in a compassionate manner. And this is even when the individual has committed a serious crime.

Under threat of death

On 18 January, the Administrative Appeals Tribunal (AAT) ruled that the visa cancellation of Chom Roeun Sam should be revoked even though he had been sentenced to five years and ten months prison for importing a marketable quantity of heroin.

The 36-year-old Cambodian national married an Australian citizen in his country of origin in October 2008. And the following year he moved to Australia. After his July 2014 arrest for heroin importation, his visa was cancelled under the new laws.

Presiding over the case, AAT Deputy President James Constance set out that under subsection 501CA(4) of the Migration Act a visa cancellation may be revoked if “the person passes the character test” or “there is another reason why the original decision could be revoked”.

And while the trafficking conviction meant that Mr Sam didn’t pass the character test, there was certainly another reason for the cancellation to be revoked, as prior to his attempt to smuggle 522.9 grams of the heroin into the country in his stomach, his life had been threatened.

Mr Sam had developed a gambling habit, which resulted in his incurring debts of up $200,000. And the people he owed the money to eventually showed up at his house armed with a shotgun and threatened his and his families lives unless he smuggled the drugs into the country.

Cancellation revoked

Immigration barrister Dr Jason Donnelly represented Mr Sam in court. The University of Western Sydney lecturer told Sydney Criminal Lawyers that it isn’t common for visa cancellation appeals to succeed, especially in considering the severity of the crime in the current case.

However, the case was a success due to three of the primary considerations then immigration minister Scott Morrison set out in December 2014 under Direction No.65, which provides guidelines on how to assess visa cancellation cases following the 501 amendments.

The first was the best interests of the minor children involved, Dr Donnelly explained. Mr Sam has an Australian born 9-year-old son, as well as a 9-year-old granddaughter, whom he looks after in the capacity of a father.

“A significant amount of weight was given to the fact that these two minor children should stay in Australia,” the doctor continued. “Because the evidence was if he was removed to Cambodia, his wife and the two children would go with him and therefore they would be adversely affected.”

The second consideration was that Sam “had taken extraordinary steps to rehabilitate himself”. Whilst inside he undertook numerous programs. And the last consideration was that he had no prior criminal record and he’d supported the family, including his wife’s adult children and grandkids.

Dr Donnelly asserts that the AAT were showing compassion and mercy. “This was a person who has a really good background and is quite an admirable man, who unfortunately committed this serious offence,” he said. “But, that’s the only offence he’s committed.”

Deporting our neighbours in droves

But, not all who fall under the provisions of section 501 get off so favourably. Indeed, the New Zealand expat community has been disproportionately affected by these laws. As soon as they took effect, the immigration detention centres started filling up with Kiwis.

The latest Department of Home Affairs immigration detention figures are from 31 December last year. They outline that 1,285 individuals were in mainland detention: 409 were 501ers, 380 people were being detained for “illegal maritime arrival” and 496 were inside for other reasons.

At that time, the greatest number of people being held in onshore detention facilities were Kiwis, numbering 150 detainees. And beside a brief lull between September and November last year, New Zealanders have made up the largest cohort in Australian immigration detention since June 2016.

And this practice has been disruptive on both sides of the ditch. Families have been ripped apart in this country as members are deported, while on the other side, a number of serious offenders have been placed on a plane and sent to NZ with no consideration of what happens on the other side.

An inhumane program

According to Dr Donnelly, as far as these laws “apply to long term noncitizens, they’re largely inhuman and uncivilised. Australia should be free thinking and appreciate that these decisions affect a number of Australian citizens and permanent residents who have legal rights to remain here”.

The barrister pointed out that as far as the deportation on character grounds process goes “it’s largely unfair”, as those at the department don’t come into contact with the noncitizens and their families. And Dr Donnelly stressed that what’s really detrimental is the decision wait times.

“We’re talking six months to a year or a year and a half. In the meantime, a lot of these noncitizens are sitting in immigration detention waiting for a decision to be made,” Dr Donnelly concluded. “And immigration detention is often worse than prison.”

Authors

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience in criminal defence. He is the Principal of Sydney Criminal Lawyers®.

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