Immigration Minister Andrew Giles commits to personally review criminal visa cancellations

Immigration Minister Andrew Giles will personally review the position of dozens of convicted criminals who had their visas restored by an administrative tribunal after he claimed his own department kept him in the dark about losing cases.

The Opposition accused the Government of a “catastrophic mistake” and watering down laws despite the minister insisting that as far as he was concerned, the visas remained cancelled.

Coalition MPs highlighted some of the dozens of cases that have been revealed where people convicted of crimes including child rape and repeated domestic violence had visa cancellations overturned when they took their case to the Administrative Appeals Tribunal.

But Mr Giles said his department failed to tell him it was losing AAT cases.

Home Affairs boss Stephanie Foster took responsibility for this during a Senate estimates hearing later in the day, saying the department had promised to advise the minister on cases that needed to be brought to his attention, “and we have failed to do that in a timely way”.

The cases where the AAT overturned visa cancellations include that of a New Zealand man known as CHYC, who was convicted of rape and domestic violence offences after sexually assaulting his stepdaughter in 2021.

The Tribunal found that revoking CHCY’s visa and deporting him to New Zealand could strain his family, “who are still trying to rebuild trust after his offending came to light.”

Another New Zealand man, Jamaal Jama, was convicted of aggravated armed robbery after he and his co-accused accosted a woman at a service station, put a knife to her neck and threatened to kill her if she did not give them money.

The AAT found he had “evidenced ties” to Australia and could face “emotional hardships” which could cause “mental health issues” if he was deported to New Zealand.

In another case, a Sierra Leone man known as LMFV, who moved to Australia after living in a refugee camp in Guinea, was charged with having sexual intercourse with a 23-year-old woman, taking advantage of her cognitive impairment and infecting her with HIV.

The AAT found that revoking the man’s visa would “expose him to far more serious consequences” in Sierra Leone than the sentence imposed upon him by the courts.

The Coalition highlighted other cases in Parliament.

“The Albanese government’s watering down of the law has allowed this criminal to stay in Australia, making our country less safe. When will the Albanese Labor government apologise for this catastrophic mistake and reverse direction 99?” Opposition Leader Mr Dutton asked.

The cases hinge on a direction Mr Giles issued in January 2023, which said that decisions to cancel visas “will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age”.

But it also said there should be low tolerance for people who had only been in the country for a short time and that domestic violence and crimes against women or children were so serious that mitigating factors would not be sufficient to overturn a cancellation.

The direction was intended to fix a long-running issue in the relationship with New Zealand that saw Kiwis who had spent nearly their entire lives in Australia being deported.

Home Affairs official Tara Cavanagh said the department had done “due diligence” on the direction and believed that “cases involving serious criminality would still be cancelled”.

”It hasn’t worked that way in practice, though, has it?” Coalition senator James Paterson said.

A document later given to senators showed that the “desktop exercise” involved the department reviewing 10 cases and finding that in two of them, the new direction would have resulted in visa cancellations being overturned instead of staying in place.

Mr Giles repeatedly said his department had reviewed and upheld visa cancellations in these cases while heeding the same direction.

AAT members appear to have interpreted the direction differently from the bureaucrats.

“The department cancelled the visas of all these people,” Mr Giles said.

“Direction 99 did not decrease the importance placed on considerations such as the expectations of the Australian community and the protection of the community from crime.”

He believed CHCY’s visa “should still be cancelled”.

“My department is now looking at all these cases as a priority, and they are all under cancellation consideration,” he said, referring to a process for him personally to consider cases where the AAT has overturned a government decision.

After the Parliament passed enabling legislation on Tuesday, a new Administrative Review Tribunal will be established by the end of the year to replace the AAT.