A 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 In the Tucker case, the risk to the community superseded his desire to live in Australia and be near his children.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 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.