Australia’s problems deporting serious criminals began well before Direction 99 was implemented

Australia’s problems deporting serious criminals began well before Direction 99 was implemented
  • PublishedJune 11, 2024

Serious convicted criminals hanging onto their Australian visas has been a hot topic for longer than you might think.

In fact, data shows the tribunal responsible for reviewing the government’s visa cancellation decisions has been increasingly upholding appeals since 2017.

“An Islamic terrorist and a Vietnamese drug trafficker are among criminals whose visa cancellations or refusals have recently been overturned by a tribunal,” a Herald Sun headline read that year.

The minister for immigration at the time, Peter Dutton, copped heat and condemned the authority at the heart of the decision — the Administrative Appeals Tribunal (AAT).

Peter Dutton budget reply speech
Peter Dutton called on Immigration Minister Andrew Giles to resign after the direction 99 controversy.(ABC News: Matt Roberts)

But he was on the other side of the chamber, as the opposition leader, when it blew up again last month.

This time, Mr Dutton was not so quick to point blame at the tribunal.

Change of direction

The rules that guide the AAT when reviewing visa cancellations have changed several times since 2017.

The edict that lit the fuse most recently is “direction 99” — a measure brought by the Albanese government last year — and it made an individual’s ties to Australia a primary consideration in the tribunal’s assessment.

Last month, it emerged that dozens of serious convicted criminals used it to hang onto their visas.

Galvanised by the revelations — and already on an immigration warpath — Mr Dutton called for the head of Immigration Minister Andrew Giles to roll.

But an immigration lawyer — who agreed to speak on grounds of anonymity due to his proximity to sensitive legal issues at play — says direction 99 is just a scapegoat.

“This has been a problem for the past decade,” he tells the ABC.

“It’s not something recently related to direction 99 … the previous directions over the last decade resulted in these issues.”

And in cases where someone’s character was in question, the tribunal upheld nearly twice as many of those appeals last financial year compared to 2017-18, according to AAT case-load data.

But those numbers didn’t surge when direction 99 came into effect.

They’ve been rising steadily each year.

Tiny Pinder a prominent case

It appears the prior two directions (79 and 90), put in place by the Coalition, had let equally serious criminals slip through the cracks.

Former NBL champion and serial rapist Kendal “Tiny” Pinder could perhaps be one of the most prominent.

The former Perth Wildcat had been convicted of sexually abusing and stalking multiple girls in Australia — a record that spanned decades.

The ABC had previously revealed he used direction 79 to successfully appeal his visa cancellation in 2019.

When handing down his decision, tribunal deputy president Stephen Boyle said Pinder’s risk of harm to the Australian community was “not an unacceptable one”.

Five years later, Pinder is serving another jail term for two counts of rape.

Former immigration minister David Coleman — who signed direction 79 — told ABC’s Insiders program he wasn’t familiar with the case.

“There are obviously large numbers of cases that go through the system,” he said on Sunday.

“What I did as a minister was seek to strengthen the system.”

‘Higher level of tolerance’

Conduct amounting to domestic violence was made a primary consideration under the subsequent direction 90.

Yet the tribunal allowed a British man who beat up his three-year-old stepson, giving the toddler a bloodied nose and bruised limbs, to keep his visa in 2021.

The 53-year-old had also been convicted of assaulting a woman and had eight restraining orders taken out against him — including from two of his ex-partners, estranged wife and mother-in-law.

Weighing in his favour, however, the tribunal found him to be a “loving father”.

“The tribunal is also guided by the principle contained in [sic] direction number 90,” senior AAT member Michelle Evans-Bonner said in 2021.

“[That direction] provides that Australia may afford a higher level of tolerance of criminal or other conduct by non-citizens who have lived in the Australian community for most of their life … this applies to the applicant.”

A year later, an Iraqi man with a “substantial” criminal record, including the rape of a 17-year-old girl, came before the tribunal.

He too was allowed to hang onto his visa.

AAT member Colin Huntly said there was “no doubt” the 38-year-old’s record of rape, malicious wounding and multiple assaults was very serious.

But the fact the applicant was facing indefinite detention at the time — and the “reasonably” expected detriment it would have on his mental health — weighed heavily in favour of allowing him to keep his visa.

Will direction 110 change anything?

Who sits on the tribunal, and their legal expertise, is among the reasons why the system has not been functioning, according to the ABC’s legal source.

Five years ago, the Coalition had to defend appointing a long list of its associates to the AAT.

They included former Liberal senator Stephen Parry, federal Liberal MP Robert Baldwin and former Nationals minister De-Anne Kelly, as well as former state Liberals MPs Michael Sutherland, Joe Francis and Steven Griffiths.

“This Liberal government seems to think that public positions are just theirs to give away to their mates,” the then-shadow attorney-general Mark Dreyfus said at the time.

“I think, frankly, it undermines confidence in the system.”

After the system took another hit, more recently, yet another directive was issued.

Mr Giles insists direction 110 will make it “clearer” that non-citizens with a history of family or sexual violence should be deported.

It may help things simmer down for now, but will it stop the issue from coming to the boil once again?


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