Offences in Immigration Detention

 
 

A person fails the character test in immigration detention or attempting to escape immigration detention. S 501(6)(aa) states :

……a person does not pass the character test if :

(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

Falling foul of s 501(6)(aa) crystallises the cancellation power under s 501(1) & (2).

In WASB v Minister for Immigration [2013] FCA 1016 (7 October 2013) an “offshore entry person” (ie boat person) was convicted of a damaging Commonwealth property ‘by pulling plasterboard from the ceiling of his cell while in detention at the Perth Immigration Detention Centre’.

The minister therefore refused a protection visa on that basis and this was upheld by the Court!

In NBNB v Minister for Immigration [2014] FCAFC 39 the offences were as follows:

Conduct to Cause Harm to Commonwealth Official – directed to enter into a $500 recognizance security to be of good behaviour for 12 months.

  • Conduct to Cause Harm to Commonwealth Official – directed to enter into a $1000 security recognizance to be of good behaviour for 12 months.

Buchanan J concluded that to refusal the protection visa was a jurisdictional error if the basis was that it was meant to deter others. Here is how it came to pass.

139….MR LLOYD [Counsel for the Minister] :  …  What happened was, “You five people” – not that it was done simultaneously or by the same Ministers, but “You five people have committed offences, and it is in the best interests of the national interest of Australia, the object of the Act, not to give you visas, because it will have a general deterrence effect and protect the Australian community through deterring people from committing those and, perhaps, worse crimes at the detention centre.”

140.Those answers very properly in my view state the effect of the Minister’s reasons in each case.

141.Having regard to those matters, in my view it is clear in the present cases that the Minister did not apply his mind to a proper determination of any of the five applications on their own merits.

142.In the present cases it is not necessary to question the premise that general deterrence may be a relevant factor to take into account in the exercise of a discretion under s 501.  It may not be the only consideration.  A decision based only on a desire to deter others, as in the present cases, does not respond properly to the particular application under consideration or deal with its merits.  In the present cases, I conclude that the Minister disregarded the particular merits of each of the visa applications.  That was a jurisdictional error.

Barbara DavidsonOffences in Immigration Detention