Risk Assessments and the Plight of Non-Citizens Deported From Australia

By Dave Martin

On April 5, 2016 a New Zealand citizen died in Villawood Immigration Detention Centre. He was being held in custody because of recent changes to the Migration Act 1958 (Cth), which legislates that Australian non-citizens sentenced to over 12 months in prison, are subject to mandatory visa cancellation.

Deportees are held in Australian detention centres, often in remote areas, until they are removed from the country. If an individual chooses to apply to have the decision revoked they will remain in detention until the Department of Immigration and Border Control conducts a risk assessment on them.

“You start throwing them back into a country they are unfamiliar with. They might have been born here, but they don’t know it, don’t know how to get around. That’s a recipe for them to go back into a life of crime”[1] Rocky Perrotta, Senior Criminal Lawyer

On 22 December, 2014 the Minister for Immigration and Border Protection issued Direction 65 to supplement section 501 of the Migration Act 1958 (Cth). These recent changes are resulting in the deportation of Australian non-citizens who have been convicted of a criminal offence and sentenced to twelve months or more in prison on the basis of them failing character grounds. The sentence(s) can be suspended or a cumulative 12 months. This implementation of a general rule, (deportation if the term of imprisonment is greater than one year), is based on past action and is not in line with undertaking an individual assessment of risk.

Media and online interest has been considerable since the legislative changes came into effect. Concern has been raised over deportation of those convicted of minor crimes, and of human rights impingements and of the human cost to deportees and their families.

The Minister of the Department of Immigration and Border Control has on numerous occasions reflected in the media that the character of people being deported under this regime are ‘hardened criminals’ with the imputation they are all but guaranteed to reoffend if allowed to remain in Australia.

However, this regime is often applied in circumstances where sentencing judges have characterised the criminal breaches in issue as not serious, or on the low end of the relevant offence range. Additionally, in 2015, the NSW Council of Civil Liberties warned that a culmination of sentences for minor offences such as “street crimes” or non-violent crimes could ultimately result in the individual being deported.[2]

Even in cases where a person’s sentence has been wholly suspended, an order that is typically only made if the sentencing judges form the view that the safety of the community is not at risk if the person remains at liberty. The Minister has commented that the safety of the Australian community can only be realised by the cancellation of the person’s visa and their removal from the country.

The deportations are proving to have high human cost, with detrimental effects on the individual, their families and to the broader community. Many of the approximately 500 people in detention awaiting removal (as at December 2015) have spent most of their life in Australia with many of them arriving as young children.

According to Senior Criminal Lawyer and Past President of the Law Society in South Australia, Rocky Perrotta, many of the deportees “…identify as Australian, have Australian accents, were educated and worked here and, most importantly, have their immediate families here”. [3] The Australian Migrations Service Registered Migration Agent Louisa Dean emphasised that many individuals who have lived here for most of their lives and have no “home” country, and often do not speak the language or understand the culture supports this view.[4]

Media commentary has been sympathetic to the plight of deportees, particularly in cases where the individual has spent much or most of their life in Australia. Similarly, much of the online interest appears to decry the legislation, pointing out the unfairness of the broad approach to dealing with a problem that many say didn’t exist prior to the legislative changes.

Many of those affected by these changes do not have access to legal advice or assistance and there is no Legal Aid funding to assist them according to the Jesuit Refugee Services. [5] In addition, they may be located at a remote detention centre such as on Christmas Island, without phone or Internet access; they make lack capacity, or in many cases may have literacy issues. This plainly raises significant concerns about their lack of ability to access the justice system to challenge their removal. The Sydney Morning Herald reported New Zealand Minister of Internal Affairs Peter Dunne as saying that the way Australia was treating New Zealanders being held in detention centres is “…in a way that is appalling”. [6]

Individuals affected by mandatory deportation orders have the right to appeal except in cases where the Minister has made the decision personally. In those cases, there is no right of appeal.

Unless a non-citizen appeals to have the mandatory visa cancellation revoked there is no assessment process that would consider their individual level of risk or likelihood or the consequence of recidivism. If a person appeals however, it sets in motion a risk assessment by the National Character Consideration Centre within the Department of Immigration and Border Control to assist the Minister in making a decision on revocation.

“The Minister does have the power to revoke a cancellation, but because this power is entirely discretionary the Minister can’t be compelled to use it, or even to consider a particular case. Nor is this power subject to ‘natural justice’ or to any kind of legal review”. [7]

There are a number of considerations in Direction 65 to which the Minister must have regard to when making a decision under section 501 of the Act, and gives guidance on how a character test must be applied by the Minster. Included is a consideration of any evidence from independent and authoritative sources on risk of reoffending, however, it is not mandatory for the Minister to consider this factor according to migration lawyers at CJ Migration.[8] Trying to predict the future is therefore a Herculean task, more so when humans are involved.

Additionally, this broadly applied process does not allow an assessment of the individual and their situations, nor of the factors which may impact their risk of recidivism and the risk to the community.

Decades-long research into the issue of how well the clinical judgement in a variety of professions accurately predicts recidivism repeatedly found it no better than chance.[9] An equally bald fact is that empirically derived risk models have poor predictive accuracy when applied to individuals.[10]

If conditions of the character test fail to be met, expulsion from Australia is mandatory. This unwavering line in the sand, based solely on past actions, is contrary to the principles of future likelihood and future consequence used in risk assessment.

Despite Federal Court and other concerns, it appears the Federal Government is widening the use of these risk assessments. A recently leaked Cabinet document would indicate that the Minister for Immigration and Border Protection is considering the use of risk assessment protocols in the consideration of visa applications. This development is a cause for concern. In a number of cases the Federal Court has expressed grave concerns about the Minister’s approach in these cases, likening the decision-making in some cases akin to ‘using a sledgehammer to crack a nut’.

CJ MIGRATION. 2015. Visa Cancellation: Kicked Out of Australia After 65 Years of Residency [Online]. Burwood: CJ Migration. Available: http://www.cjmigration.com.au/visa-cancellation-kicked-out-of-australia-after-65-years-of-residency/ [Accessed 28 February 2016].

COYLE, I. 2011. The Cogency of Risk Assessments. Psychiatry, Psychology and Law, 18, 270-296.

DEANS, L. 2015. Permanent Residents: Not so ‘permanent’ anymore [Online]. Brisbane: AMVL Migrations. [Accessed 14 February 2016].

HASHAM, N. 2015. New Zealanders who failed Australia’s ‘character test’ returned: Peter Dutton. The Sydney Morning Herald, 19 November.

MURPHY, K. 2015. Border Force Keystone Cops no laughing matter [Online]. Sydney: Jesuit Refugee Service Australia. Available: http://www.jrs.org.au/border-force-keystone-cops-no-laughing-matter/ [Accessed 28 February 2016].

PERROTTA, R. 2015. Mandatory Visa Cancellation Law will Tear Australan Families Apart [Online]. South Australia: Linkedin. [Accessed 30 March 2016].

RUSSELL, L. 2015. Scott Morrison’s Unfinished Business [Online]. Melbourne: Swinburne University of Technology. [Accessed 15 February 2016].

TVNZ. 2015. Prisoner charity at risk after huge spike in deportations from Australia [Online]. Auckland: TVNZ. Available: https://http://www.tvnz.co.nz/one-news/new-zealand/exclusive-prisoner-charity-at-risk-after-huge-spike-in-deportations-from-australia-q15587 [Accessed 28 February 2016].

[1] TVNZ. 2015. Prisoner charity at risk after huge spike in deportations from Australia [Online]. Auckland: TVNZ. Available: https://www.tvnz.co.nz/one-news/new-zealand/exclusive-prisoner-charity-at-risk-after-huge-spike-in-deportations-from-australia-q15587 [Accessed 28 February 2016].

[2] RUSSELL, L. 2015. Scott Morrison’s Unfinished Business [Online]. Melbourne: Swinburne University of Technology. [Accessed 15 February 2016].

[3] PERROTTA, R. 2015. Mandatory Visa Cancellation Law will Tear Australan Families Apart [Online]. South Australia: Linkedin. [Accessed 30 March 2016].

[4] DEANS, L. 2015. Permanent Residents: Not so ‘permanent’ anymore [Online]. Brisbane: AMVL Migrations. [Accessed 14 February 2016].

[5] MURPHY, K. 2015. Border Force Keystone Cops no laughing matter [Online]. Sydney: Jesuit Refugee Service Australia. Available: http://www.jrs.org.au/border-force-keystone-cops-no-laughing-matter/ [Accessed 28 February 2016].

[6] HASHAM, N. 2015. New Zealanders who failed Australia’s ‘character test’ returned: Peter Dutton. The Sydney Morning Herald, 19 November.

[7] RUSSELL, L. 2015. Scott Morrison’s Unfinished Business [Online]. Melbourne: Swinburne University of Technology. [Accessed 15 February 2016].

[8] CJ MIGRATION. 2015. Visa Cancellation: Kicked Out of Australia After 65 Years of Residency [Online]. Burwood: CJ Migration. Available: http://www.cjmigration.com.au/visa-cancellation-kicked-out-of-australia-after-65-years-of-residency/ [Accessed 28 February 2016].

[9] COYLE, I. 2011. The Cogency of Risk Assessments. Psychiatry, Psychology and Law, 18, 270-296.

[10] Ibid.

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