Deportation dilemma

19 Comments

Clifford TuckerA 46-year-old UK citizen, Clifford Tucker (pictured), was removed from Australia to Britain this week. His visa was cancelled because he failed the character test and no discretion was exercised in his favour. He has three Australian citizen children and has lived in Australia for 40 years. He also has a long history of violence and other criminal offences.

An old principle of law is that you should not be punished twice for the same offence. But  governments believe they should be able to remove a non-citizen who is seen to be a risk to the community. It can be difficult to maintain this balance. In the Tucker case, the risk to the community superseded his desire to live in Australia and be near his children.

The Migration Act has a powerful provision in section 501, which provides that the minister can refuse or cancel a visa of someone who fails the character test.

The character test has three main parts. First, someone fails if they have a substantial criminal record (i.e. having been sentenced to at leasst 12 months in prison). Second is the association test, which came to prominence in the Dr Haneef case in 2007.

Third is the assessment of past and present criminal or general conduct. Commonly this looks at people who, while they may not have been convicted of criminal offences, have breached visa conditions, worked without permission or overstayed their visa.

Most cases now seem to fall into the criminal record category.

If someone fails the character test, four primary discretionary factors are considered. These are: the protection of the Australian community; whether the person was a minor when they came to Australia; the length of time a person was in Australia before they engaged in criminal activity; and relevant international obligations.

The fourth ground includes consideration of whether there are children who could be affected, or whether a person is covered by the Refugee Convention or other international treaties.

Other factors may also be considered, but those who fail the character test need to have at least one of those four factors in their favour to have any chance of winning their case.

Cancellation under s501 means not only are you removed from Australia; you will never be able to return — ever!

Hardly anyone is deported anymore. They are removed after their visa is cancelled. This is because the s501 cancellation power is stronger and wider than the s200 criminal deportation power, which is limited to those who have lived in Australia for less than 10 years. The s501 power has no time limit.

The process of review through the Administrative Appeals Tribunal is complex and requires the help of experienced lawyers. Cases become more difficult when there is a long criminal history and the person has been in Australia for many years or since they were a child.

A previous case went all the way to the High Court after one Mr Nystrom's visa was cancelled due to his long criminal record, despite his having lived in Australia since he was one month old.

The Ombudsman considered the power in a detailed report in February 2006 and criticised the former Government for the way it exercised the power. A key point was:

The desirability of protecting the Australian community from non-citizens who have committed serious crimes, and are likely to reoffend, is not questioned. However, the permanent residents affected by the removal decisions under examination in this investigation have been here so long that they, and the communities they live in, see them as Australians.

The system was reformed and former Immigration Minister Evans redrafted the discretionary guidelines to take greater account of these factors. There is a risk that those who have already 'done the time' for their crimes will be punished again by migration law — a double penalty.

It is ironic that a country which started as a penal colony now treats those with criminal convictions more strictly than the UK does. While criminal acts cannot be condoned, it is problematic that there is this possible extra punishment outside the criminal justice system.

It may be that an arbitrary period of lawful residence (10 or maybe 15 years) is needed to say, 'This person has lived here so long that they are now Australia's problem.'


 

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 

Topic tags: Kerry Murphy, Clifford Tucker, deportation, Migration Act, criminal record, character test

 

 

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Existing comments

When I worked as a Probation and Parole Officer, I think I was probably regarded by a number of my colleagues as out of step, by being too much on the side of the rights and needs of the offender. Nothing in my attitude has changed, but the case of Mr Tucker is glaringly different.

At any time in the past thirty or so years, he could have engaged in the simple process of applying for, and receiving, Australian citizenship. It obviously meant nothing to him. Mr Tucker made a mature, adult decision not to belong to our community. The Minister has made a reciprocal decision. There is now space in Australia for one of the children in that concentration camp we call Christmas Island.
Peter Downie | 20 April 2011


Thanks for this considered examination of a cruel law. I knew of a case where a young man was returned to the UK after imprisonment, although he had never lived there since infancy. His children were here, he had a terminal illness and no support network in England.

People like he, Nystrom and Murphy may have been born elsewhere, but were made in Australia. Just as we revel in the successes of immigrants, we have to endure the failures and try to rehabilitate them, not discard them. One obvious lesson from such cases is: if you mean to live in Australia, become a citizen. Sadly, in the past, enjoying all the privileges of citizenship as they did, many British people especially saw no reason to take out Australian citizenship.
Myrna | 20 April 2011


I concur with Peter Downie's statement, as a mature adult Clifford Tucker had ample time to apply for Australian Citizenship. Now what is the law on deporting asylum seekers that riot and destroy Australian property. There very action makes them a danger to the community (both the Australian and the refugee center) hence they don't qualify for Australian citizenship. Bye bye or is that too simple?
Frederick Dunn | 20 April 2011


This is a form of reverse transportation; as with my convict ancestors, this is permanent exile. Having lived here since the age of six, Clifford Tucker is a product of our society, not the UK. Regardless of whether he should have taken out citizenship, the fact is that he is an 'absorbed' person, a citizen of Australia in all but name. Michelle Foster points out that few deportations were made on these grounds before 1999; it seems to be part of the insidious border security mantra of successive Immigration Ministers, a product of the overt nationalism of recent times. If a double penalty is to be potentially applied to such 'non-citizens', there is an argument that this should be taken into account in sentencing.
Kate | 20 April 2011


I agree with the comment of Peter Downie. The man had a choice and decided to become a criminal and decided Australia was not for him. It would be cruel to to stop him now from going back to his beloved UK.
Beat Odermatt | 20 April 2011


Fine Kerry. Then have him live next door to your house.
Michael | 20 April 2011


It is not a problem as a 'double' punishment. It is meant for the protection of the next Australian who may become a victim of this man's criminal behaviour. The publi's right to safety comes first.
Trent | 20 April 2011


Fine Kerry. Then have him live next door to your house.
Michael | 20 April 2011


I notice you conveniently not to mention what hideous crime this man has committed !!!
Jim | 20 April 2011


Mr Tucker may well be someone we might be anxious about. But those who seem keen to make sure he goes forget that all these "defintiions" and "legal identities" are man-made not existentially real. It's all in the collective mind and consensus. What is real is that someone like Mr Tucker thinks like an Australian, due to his lifelong formation in this society of ours. Australianness - like Catholicness - is always going to be a disputed thing, but if it means anything substantial and objective, the nurture-induced psyche must have a lot to do with it. Otherwise we're back to the old skin-colour/speech-accent/name-sounding prejudices of the nationalistically insecure.

Here's the news, folks of the uber-recht: Australians are bad and good and in-between, were born everywhere, and...you get the picture.
Stephen Kellett | 20 April 2011


I'm wondering if the "throw him out" commenters know anything of this man's background. I don't. But I do know that a very large number of people that end up in the criminal justice system have a mental illness, and often a very hard start in life. I wouldn't rush to judgement.

Whatever, it seems he's one of us, whether a document was ever stamped or not. He grew up here, his children are here.
Russell | 20 April 2011


It is always sad when someone loses the right to live in the place that they called home for nearly all their life, and where their direct family lives. People with wealth and a good education will rarely find themselves in the predicament that Mr Tucker now finds himself in.

One of the last deportation cases involving someone who had spent almost their total life in Australia related to some 'independent minors' who had come as orphans in Australia and who were never advised of the wisdom of acquiring Australian citizenship. They had lived sad and dysfunctional lives and the Immigration Minister had been unable to protect them from uncaring sponsors. They had also lived in parks and were largely illiterate but these mitigating circumstances did not protect them from the jeopardy of deportation to what was, to them, an alien country.

I considered this an abdication of responsibility for Australia as these young people's adoptive parent. This case is almost as sad. I feel great pity for Mr Tucker's children and family especially, whose rights are being denied.
Eveline Goy | 20 April 2011


I think it is quite interesting to note that an increasingly large number of UK citizens who have called Australia home for decades are now taking out citizenship. More recent arrivals, from more perilous backgrounds, seem to do that as quickly as possible. The latter, it appears, don't buy the temptation to presume.
David Timbs | 20 April 2011


If this man is a current danger to the community, as manifest by recent behaviour, then the minister`s decision is reasonable. If his misconduct was a long time ago, and he has shown by more recent behaviour that he is decent member of the community...then this is a cruel and unreasonable punishment, and I am ashamed of it. What would Jesus say?
Eugene | 20 April 2011


This is not an issue of great moral import, nor is it an issue of travesty of justice. It is simply a badly behaved person who shows no remorse getting ejected from a community that has nurtured him and has in return been abused by him.
graham patison | 20 April 2011


I am conflicted. I feel sorry for this man, but I also feel sorry for the family of the police officer he shot in the 1980s. However my main concern is that this case will provide a precedent for getting rid of visa holders who may not have the British background Mr Tucker does ...
MBG | 20 April 2011


He would not have been granted citizenship even if he had applied so that is a moot point.

It's completely ridiculous that we claim he is a danger to us but not the poms though isn't it.
Marilyn Shepherd | 22 April 2011


Surely Marilyn is right. Particularly these days, Clifford Tucker would not have been granted citizenship.Perhaps the hard line that is being taken is a further way to discourage those who try to get to Australian without a visa but of course such people will not be aware of it.
Simon Lewis | 22 April 2011


He didn't get here without a visa, he was brought by his parents before visas were invented.
Marilyn Shepherd | 23 April 2011


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