It is the most unfair and un-Australian of our laws

I first represented Hong in the 1990s when he was in his late teens or early 20s with a list of convictions as both an adult and juvenile, mostly drug related.

I have also been representing clients who have had their visas cancelled under the Migration Act 1958 section 501 for over 20 years and indeed represented the first person who had this draconian power used against them.

Prior to that I represented clients who were being deported under section 200 of the Act, which existed prior to the enactment of section 501.

Relevantly section 200 did not apply to persons who had been permanent residents for more than 10 years. So before the commencement of section 501, people who came here as children and committed offences as adults could not be deported.

The process of cancelling the visas of people who arrived in Australia as children and grew up here, only commenced with section 501 which, importantly, when used to cancel a person’s visa means that that person cannot return to Australia for any reason. They can’t go to their mother’s funeral or their sister’s wedding.

If a person arrives in Australia as a child and grows up here, any offending behaviour has been learnt in Australia. It seems to me that, in these circumstances, they are Australia’s problem.

To simply ship them off to the country of their birth is tantamount to sweeping the problem under the table.

Such people almost certainly have family in Australia consisting of their parents and siblings who are, typically, Australian citizens, and constitute an Australian family.

Australia has international obligations as a signatory to the International Covenant on Civil and Political Rights, Article 23.1 of which provides:

“The family is the natural and fundamental group unit of society, and is entitled to protection by society and state.”

If Australia is to take this obligation seriously it would not break up the family by removing one of its members and preventing them for life from returning.

While acknowledging that the subject of the cancellation must have committed a crime and been sentenced to a term of imprisonment for at least 12 months, that is the sentence imposed by our criminal justice system.

In circumstances where a person has grown up in Australia and is in all senses, other than nationality Australian, we should not be cancelling their visa and imposing a further penalty on them and their family, unless there is overwhelming evidence that the Australian community is in some demonstrable danger if the person is allowed to remain in Australia.

The courts have consistently held that visa cancellation and deportation cannot be a second or additional punishment. It can only be invoked if it is in some national interest for the person to be deported.

In my opinion, the Australian Government should rethink the whole visa cancellation on character regime. More regard should be had of the person’s total history in Australia and family ties. The protection of Australia should only be considered when there is solid evidence to support it.

The 10 year rule should also be applied to section 501 decisions recognising that people become Australian in substance and not only necessarily by going though a specified ceremony.

What is the real difference between being born here and coming here as a baby in your parents’ arms?

This story was featured on SBS Dateline  on the 15th March 2016.