‘Authoritarian-style’ law would allow Australia to use secret evidence to deport migrants | Australian immigration and asylum

Chris* had by no means been charged with against the law, by no means accused, by no means questioned. But his visa was summarily cancelled, and he was not welcome in Australia, the one nation he had ever often known as house.

Chris had lived in Australia for greater than 30 years for the reason that age of 1, however had his visa cancelled in 2019 for having as soon as been a member of an “outlaw motorcycle group”, the Mongols – regardless of that group not being outlawed within the state the place he lived.

In August his enchantment reached the federal courtroom, which handed down an excoriating judgment, condemning the federal government’s determination and quashing the cancellation of his visa.

But the federal authorities is now searching for to enact new legal guidelines which would make it tougher to problem such a visa cancellation. Under the proposed law, an individual’s visa could possibly be cancelled with out them figuring out why, or on what evidence the choice was primarily based. Upon cancellation, visa holders would be forcibly faraway from Australia, or, in the event that they have been stateless, detained indefinitely with out cost or trial.

Legal organisations and rights teams say the law would set up a “regime of alarming secrecy” and stop individuals from contesting deportation or indefinite detention primarily based on data that may be misguided, maliciously planted or misinterpreted.

‘A black hole’

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill is at the moment earlier than parliament’s intelligence and safety committee, however the Guardian understands debate could possibly be introduced on earlier than the top of the yr.

The invoice was tabled in response to a 2017 excessive courtroom determination that discovered a part of the Migration Act was unconstitutional as a result of it allowed the minister to “shield” data from the excessive courtroom in instances it was adjudicating.

Under the proposed law, anybody who disclosed “protected information” – even to the particular person towards whom it was getting used – outdoors restricted exceptions could possibly be jailed for 2 years.

Where a visa determination has been made utilizing “protected information” from a law enforcement or intelligence company, no tribunal or parliament would have the correct to know the knowledge the federal government was counting on.

And the courts’ use of the knowledge would be strictly restricted. They would be required to maintain closed hearings – open solely to events who already maintain the knowledge – earlier than deciding whether or not it could possibly be disclosed additional, together with to the particular person whose visa has been cancelled.

The Department of Home Affairs insists the invoice is required to “enhance the government’s ability to uphold the safety and good order of the Australian community by managing the risk posed by migrants of character concern”.

However, Dr Carolyn Graydon, principal solicitor with the Asylum Seeker Resource Centre, says for a migrant or refugee making an attempt to problem their deportation or indefinite detention “it’s like fighting with both hands tied behind your back in a blindfold”.

“This bill is extraordinary because it specifically prevents parliamentary committees from having oversight of the way that these laws are being implemented.

“It’s a black hole from the courts, except for a very narrow judicial review exception. It’s a black hole from the parliament entirely. This is what makes it a truly authoritarian-style law.”

Carolyn Graydon, manager of the Asylum Seeker Resource Centre’s Human Rights Law Program.
Carolyn Graydon, supervisor of the Asylum Seeker Resource Centre’s Human Rights Law Program, warns a proposed law that enables the federal government to use secret evidence to deport migrants is ‘a black hole from the courts’. Photograph: James Ross/AAP

Contentious cancellations

Most visa cancellations in Australia are made beneath part 501 of the Migration Act – the so-called “character test”. Most are made towards individuals who have been convicted of an offence and served a jail time period of a couple of yr.

But the federal government can cancel an individual’s visa with no crime being dedicated for “association with someone else … whom the minister reasonably suspects … is involved in criminal conduct”, or for “general conduct … where the person’s conduct may not have constituted a criminal offence”.

The authorities’s use of the part 501 “character test” has escalated dramatically over the previous decade, rising almost tenfold from 139 in 2012-13 to a peak of 1,278 in 2016-17.

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In 2020-21, 946 individuals had their visas cancelled, ensuing of their detention or expulsion from Australia. Drug offences have been the commonest trigger for cancellation (126), adopted by assault (109). Ten individuals had a visa cancelled due to an “association” with an individual or a gaggle, with out being charged with or convicted of any crime.

Australian courts have thought-about quite a few contentious visa cancellations in recent times.

When the federal courtroom quashed the visa cancellation of Chris, a New Zealand nationwide, it discovered the minister cancelled his visa:

… even if … [he] accepted that [Chris]: was not a member of the Mongols; had not been discovered to have dedicated any prison offence himself; had lived nearly his whole life in, and had vital ties to, Australia; had a accomplice who was an Australian citizen and with whom he had 4 younger youngsters whose pursuits have been finest served by allowing [Chris] to retain his visa; had made a optimistic contribution to the Australian group; and would endure hardship and emotional misery if separated from his household in Australia.

The minister conceded Chris’s membership of the membership had been “largely innocent and not otherwise unlawful”.

The federal courtroom discovered the minister’s reasoning that Chris may “offend” sooner or later “difficult to comprehend given that there was no evidence or even suggestion that [Chris] had offended in the past”.

In August, the courtroom issued its determination within the case of a Mexican nationwide, HJC*, whose younger son is an Australian citizen, and who had her visa cancelled over a query the federal government stated she answered incorrectly on a visa utility a decade in the past.

She answered “no” to the query “Have you … been convicted of a crime or … been charged with any offence that is currently awaiting legal action?”

The courtroom heard that in October 2000 she was apprehended by Texas police when the automobile she was driving was allegedly discovered to have contained hashish on the US border. She allegedly instructed officers she had been coerced by her then accomplice into transporting the medication.

HJC stated she was neither arrested nor charged and subsequently travelled in and out of the US with out challenge. She has by no means been charged with a prison offence in Australia.

But Australian authorities “received non-disclosable information” {that a} bench warrant existed for HJC’s arrest over the alleged offence in 2000. The allegations have by no means been examined in a courtroom. The warrant has by no means been served on HJC, and she instructed authorities she was not conscious of it.

The Department of Home Affairs cancelled her visa in 2015 on the grounds she had incorrectly answered two questions on her visa utility.

The courtroom upheld the federal government’s determination to cancel her visa, which can nearly actually end in her being deported and separated from her little one, for whom she is the first carer.

Last yr, a person – EVX20 in courtroom paperwork – had his visa cancelled after he was wrongly convicted and then subsequently acquitted of a homicide in Queensland. The unique verdict was put aside by the courtroom of enchantment due to an absence of any forensic evidence or identification to hyperlink him to the crime.

After the person’s visa was cancelled, he was held in immigration detention. Following his acquittal, he appealed to the minister who selected to let the cancellation stand.

The man, a stateless refugee, confronted indefinite detention.

But an enchantment to the federal courtroom in August discovered within the man’s favour. “In the eyes of our legal system, the applicant has no criminal record whatsoever,” the judgment stated.

‘Classic executive overreach’

When the then house affairs minister Peter Dutton launched the invoice into parliament in December 2020, he stated it was “balanced” and “fair”, and that the law would “ensure that sensitive information – disclosed in confidence by law enforcement and intelligence agencies – is appropriately protected”.

But Graydon says these instances, and others like them, are evidence of the necessity for extra sturdy oversight of the federal government’s energy to cancel visas, fairly than the secretive regime proposed.

“It’s classic executive overreach. Our whole system is supposed to be built on there being a separation of powers and a watchdog system where each of our three parts of the state holds each other to account. This is a government exploiting what is a politically sensitive issue and using it in order to have complete control and decide, unfairly, in every case, who gets to stay here and who doesn’t.”

Every non-government submission concerning the invoice earlier than parliament’s intelligence and safety joint committee – together with these of the Australian Human Rights Commission and the workplace of the United Nations excessive commissioner for refugees – argues it must be rejected as unwarranted, harmful and a breach of elementary authorized rules.

The Visa Cancellations Working Group – a nationwide group of migration law specialists – stated the invoice was clearly disproportionate, and would impose “a regime of alarming secrecy … which will lead to consequences for individuals and communities of the most severe order”.

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The Australian Human Rights Commission stated the proposed law was anathema to authorized rules “that the state should not be permitted to rely on secret evidence in cases where a person’s liberty is at stake”.

The fee argued the invoice was pointless: the federal government already had a set of choices for shielding confidential data out there to it beneath the National Security Information Act.

But authorities companies – together with the Australian Criminal Intelligence Commission and the Department of Home Affairs – have supported the invoice, saying it was “necessary to ensure protection of confidential information … and to uphold public and national security interests”.

The Australian federal police deputy commissioner, Ian McCartney, argued for secrecy: “it is in the public interest that sensitive sources, as well as investigation and intelligence gathering methods, are not publicly disclosed.”

The Australian federal police deputy commissioner, Ian McCartney.
The Australian federal police deputy commissioner, Ian McCartney. Photograph: Mike Bowers/The Guardian

Asio stated it had “no concerns” with the invoice.

But a government-commissioned evaluate of Australia’s nationwide safety legal guidelines by the previous Asio chief Dennis Richardson in 2019, earlier than the present invoice was launched, discovered “the mechanisms for the protection of national security information in court proceedings … are adequate and not in need of major reform”.

“It is clear that some agencies lack appreciation of the careful balance that must be struck between an accused’s right to a fair trial, the principle of open justice, and the protection of national security information. Any mechanism designed to protect national security information from disclosure in court proceedings can never offer an absolute guarantee of non-disclosure … that is a reality in a liberal democracy.”

In an earlier Senate committee, the Labor get together condemned the laws as “fundamentally inconsistent with the rule of law” and stated it shouldn’t be handed into law.

In evidence to the intelligence committee, Graydon stated the Asylum Seeker Resource Centre was “concerned that the bill privileges information from law enforcement authorities and elevates them above our courts, above our parliament’s scrutiny, with no control over the quality or accuracy of this information”.

“They could include tip-offs made by people with ulterior purposes, information from foreign security sources, including from countries against which the applicants have been found to be refugees or have applied for protection from.”

Rachel Saravanamuthu, ASRC’s senior solicitor, stated visa cancellations devastated individuals’s lives and upended households and communities.

“Often people are sent to countries where their families could never visit them because it’s not safe for them since they have protection claims there. Or one person’s character cancellation could have wide ramifications for a whole family. If the primary applicant’s visa is cancelled, then all their dependent children’s visas will be cancelled as well.”

* names have been anonymised for privateness causes

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