By JR on Sunday, July 17, 2011
DOZENS of foreigners who committed despicable crimes in Australia have escaped deportation because of a tribunal's rulings. Convicted killers, rapists, paedophiles, armed robbers and serial offenders who have had their visas cancelled have won the right to remain in Australia.
In the last financial year the Administrative Appeals Tribunal overturned 24 cases - reinstating serious convicted criminals' visas that had been cancelled by the Immigration Department.
In another eight cases the tribunal told Immigration Minister Chris Bowen to reconsider the Government's finding that the offenders were not of good character and to give them visas.
One of the most shocking cases involves Maltese-born "DNCW", a convicted rapist and paedophile, who settled in Victoria after moving to the country from overseas as a child. In 2003, in his 20s, he twice attempted to commit incest with his 12-year-old step-daughter and raped his estranged wife. He was jailed for a maximum of seven years and six months. His other offences included theft, unlawful assault, breach of an intervention order, burglary, cultivating a narcotic plants, unlawful possession, and possession of housebreaking implements.
The tribunal allowed him to stay because he had no close relatives in Malta, barely spoke the language, was not eligible for social security in Malta and would "suffer considerable hardship" if deported.
As well as the broken visa cases, the AAT found six permanent residents - refused citizenship by the department because of their criminal records - were of "good character" and should become Australian citizens.
Leading criminal lawyer and Queen's Counsel Peter Faris said the situation was "scandalous". "The system is not working to protect the public and needs to be changed," he said. "People who have committed serious offences such as murder, manslaughter and rape should be excluded from appealing (decisions revoking their visas). "There must be crimes that are not acceptable and therefore there can be no debate, no appeal. People such as murderers must be automatically excluded."
But Ethnic Communities Council of Victoria chairman Sam Afra said because the criminals were in Australia, the local law that allowed them to appeal should apply. "If they are on Australian soil and the system allows them to stay, then that is the situation," he said. "If they have been punished and served their time, then they must be treated like any other Australian."
The Sunday Herald Sun understands the Government has become concerned by unelected members of the AAT reinstating the visas of criminals.
The Government said that since April serious cases had not been decided by department officials and had instead been referred directly to the Immigration Minister Chris Bowen, whose decision could not be appealed in the tribunal - it had to go to the Federal Court. Mr Bowen has cancelled eight visas and since April has notified a further eight criminals that he will cancel their visas.
Opposition immigration spokesman Scott Morrison said the minister should have intervened in the first place in such serious crimes to stop ensure that criminals involved in such serious crimes could not "play the system".
He said criminals could plead compassionate grounds to stay in Australia at the tribunal, but if the minister cancelled their visas the matter had to go to the Federal Court, which could consider only failures of legal process.
A spokesman for the Immigration Minister refused to say whether any legal action was being taken to quash the tribunal's controversial decisions. But he said the Government took "very seriously" its role to protect the Australian community from harm caused by foreigners and had in recent years cancelled or refused hundreds of visas. "It's obviously disappointing and concerning where the department's visa cancellations on character grounds are overturned," the spokesman said.
The tribunal's principal registrar, Philip Kellow, said the organisation did not comment on individual cases. "The tribunal is an independent body that reviews government decisions on the merits," he said. "It considers afresh a decision under review based on the evidence before it."
The reasons the tribunal gave in recent rulings for letting criminals stay included that the offenders had close ties to Australia and none in their homelands or that they had prospects for rehabilitation. One man was allowed to stay because he and his partner were expecting their 10th child in Australia.
The criminals include career offenders who started as juvenile thugs and graduated to violent crime, as well as wife-beaters, a tax evader, thieves, burglars and offenders who assaulted police.
Most of those allowed to stay are from New Zealand. Others come from such countries as Liberia, Bangladesh, Vietnam, Samoa, Lebanon, South Korea, Bosnia and Fiji.
The Department has a dedicated unit which monitors judicial lists and hearing and liaises with police and correctional authorities to establish if foreigners on visas have commited crimes. If a visa is cancelled, the person is deemed to be an "unlawful non-citizen" and is deported as soon as possible, depending on whether they appeal.