Dr Durani and son, image – www.watoday.com.au
Try and explain this to a human rights advocate. We have a doctor, of Indian origin, who is accused of sexual assault of a patient whilst he and she are in the Emergency ward of Royal Perth Hospital. The matter goes to trial and the doctor is convicted of this crime. He appeals the decision and is unsuccessful. He serves his time in jail. On the day that he is due for release, his wife and child (4 years old at the time) are ready to pick him up at the prison. Immigration officials serve a notice on him that the department has cancelled his visa and he is escorted to Perth Immigration Detention Centre at Perth Airport.
After receiving legal advice he decides to appeal that immigration decision to the Administrative Appeals Tribunal. The AAT found in his favour and based on their reading of the act they decided the following:
“The decision under review is set aside and, in substitution therefore, it is decided that the applicant’s Class VE Subclass 175 (Skilled–Independent) visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth).”
Dr Durani resumed life in the community following the decision. Life was about taking his child to his school each day whilst his wife went to work as a dental assistant. Dr Durani was unable to continue practice as a doctor. That matter is being contested separately.
On the Friday before the election, Suhail was attending to his usual parental duties. On this occasion and time he was bathing his son. It was around 5.30 in the evening. There was a knock at the door of his Cannington home. Two men were there and they advised him that they were from the Immigration department and they wished to come inside the home. Having been granted entry they presented him with a letter that said the following:
VISA CANCELLATION UNDER SUBSECTION 501 A(2) OF THE MIGRATION ACT
1958.
Dear Dr Durani
I wish to advise you that the Minister for Immigration, Multicultural Affairs and
Citizenship cancelled your Class VE Skilled (Migrant) Subclass 175 Skilled –
Independent visa on 3 September 2013.
This letter does not constitute formal notification of the decision to cancel your visa.
A notice setting out the reasons for the visa cancellation, including all matters considered by the Minister when making his decision will be provided to you through your authorised recipient.
As a result of the cancellation of your visa you are now an unlawful non-citizen and it will be necessary for DIAC officers to take you into immigration detention. Please note that those officers cannot provide further information about the visa cancellation process.
Yours sincerely
(name deleted by Editors)
National Character Consideration Centre
Melbourne
The provisions of the Migration Act that Tony Burke, the former Immigration Minister, acted under are contained in section 501 of the act. This is what that section says:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister–natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test .
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
The main considerations that arise from this matter are as follows:
- Dr Durani has already had his visa cancelled once by the department. That decision was set aside by the Tribunal and the decision overturned. The tribunal decided that the Doctor would be allowed to stay in the community and that there was no risk of reoffending as determined by the psychologists in the Justice system
- The Minister’s decision to cancel the visa is on exactly the same grounds as were advanced in the first instance of cancellation
- The Minister’s decision was made during a period of caretaker provisions of government. Under the caretaker provisions there is a requirement that the Opposition would be briefed about important decisions of this nature. Was Scott Morrison the Shadow Immigration spokesman accorded this courtesy?
- The Minister had the right and opportunity to appeal the decision of the tribunal in May this year. He chose not to do so.
- If the minister was concerned as to the danger that Suhail posed to the community why did he not act in May when the Tribunal made their decision?
- Separating the family in the fashion proposed is not beneficial to the well being of Dr Durani’s wife and child.
Interestingly of course that section of the Migration Act also says that “The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).”
This matter has been raised with members of the government that took office soon after the election. Tony Burke and his coterie of decision makers will move on to undertake their next and other disasters. One can only hope that someday he will have to look at the son of Dr Durani in the eyes and advise him as to why he undertook the decision that he did.
Of course we are also aware that Tony Burke also made a number of other decisions in the weeks leading to the election that are questionable. A number of children were released into community detention. I wonder how many of these decisions were discussed with the opposition when they were being made during the “caretaker” period of government. We trust that Scott Morrison will review these matters as he does the Durani decision.
Hi Suresh,
Above can surely be regarded as an interesting example of precision and understanding (or not- ). According to the mentioned section of permission to remain in Australia compared to that news passed on by the two intruders [mind you, they probably came late and most likely obtained overtime-payment, i.e. extra donations from you, me and all other Australians put into their pockets], the Minister’s and the other differ slightly. One mentions subsection 501 A [2)] of the Migration Act, the other Section 501 [2], which shows no 501 A [2].
Since there is no Subsection 501 A [2] mentioned, the visa-cancellation quoted seems to me to be invalid.
But then it must be considered that Burke is well over the horizon. Especially now it seems more difficult to reach characters past there!
I pity Dr Morrison having to p(r)eview all laborious left-overs. If further problems appear in future, please let your readers know. Then even I might be forced to sit down and try and digest all rules made-up by some characters. Merely such points to clarify that simple signs, such as ‘comma’ or ‘semicolon’ or one-or-two letters can sometimes change specific meanings completely. Please let me know your views,
Gus.
Gustav, Quite right. We are sure that the notice would be invalid. It was not signed and as you say there errors of fact on the document as well! Shoddy workmanship is all you can point to! In the interim he remains in detention waiting for Ministers to do their stuff!
Hi Suresh,
Just to let you know that is nothing new; -1993 I had a neighbour from India; he had immigrated with his wife, and thinking that they would be naturalised soon, obtained a son. Since he had not been naturalised, he was not permitted to remain in Australia except as a visitor. Every 6 months he visited Australia, while his wife visited India, followed by the reverse during the following 6 months. After approx. 4 years I left that area, but hope that he didn’t have to travel back-and-forth too often thereafter. That again was a strange way to treat Immigrants with an Australian child. At that time I didn’t go into this any deeper, but it could have been possible that the son had a disability. Then, of course, it can be well understood why the Australian government did not permit naturalisation, as even at present. Why not go into the topic of NEDA and persons of Non-English-Speaking Background with disability to notice even the last governments negative approach. Hopefully better understanding can be shown soon! I suggest readers look at website NEDA closer.
But of course Burke could have granted the refugee kids residence and protection but left them at the mercy of Morrison.
Quite true Marilyn. He could have released them into the community. Leaving anyone at the mercy of Morrison is a challenge in itself!
Hi Marilyn,
Don’t forget, I’m from the East, and if a bloke’s on the other side of Bourke he may as well be afar. Probably that’s where Burke had been in that short time; no wonder if much stuff may have been left behind. To avoid it from sinking, somebody surely has to dig out specific papers soon to show it to the top people now.