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Courts grapple with increase in deportation

Courts grapple with increase in deportation

By Karin Derkley



Criminal defence lawyers and judges are increasingly having to take into account the prospect of their clients facing deportation following a criminal sentence.

Almost 1000 people are now being deported each year from Australia following a criminal sentence – up from around 100 people a year before 2014, according to a report by the Sentencing Advisory Council into deportation and sentencing.

Council chair Professor Arie Freiberg says the "extraordinary increase" in the use of Commonwealth provisions means an increasing number of practitioners are facing this problem.

"This is no longer a peripheral issue but one that practitioners will confront more and more," says Professor Freiberg.

Practitioners can help the courts by making deeper inquiries about their clients’ citizenship or visa status, he says.

"They need to make sure they provide a copy of the current visa or submissions about the current visa status, as well as a submission about the likelihood of the offender applying to have their visa reinstated if their sentence is longer than 12 months and triggers mandatory cancellation."

Changes to federal law in 2014 mean any non-citizen sentenced to 12 months imprisonment or more now has their visa automatically cancelled, making deportation a prospect in a much wider range of cases than previously.

"It’s a collateral consequence of the federal government’s policies which are biting in terms of the number of people being dispatched back to homelands they may not have seen before or not since a child," Professor Freiberg says.

Courts are also increasingly having to grapple with how to take deportation into account when sentencing, he says. "It’s a complex issue."

"The difficulty that sentencing courts face is how they should assess the prospects of a particular offender having their visa cancellation overturned", the report states.

One in every seven sentence appeals heard by the Court of Appeal now involve an offender who faced cancellation of their visa and consequent deportation, and nearly one in three offenders who applied to overturn their visa cancellation had their visas reinstated following an appeal.

There are four ways in which potential deportation has been taken into account to mitigate an offender’s sentence, the report found:

  • it may be treated as an additional form of punishment
  • it may cause the offender anxiety, making their time in prison more difficult
  • it may reduce the offender’s prospects of being granted parole when they are eligible (although legislation prohibits Victorian courts from taking this into account)
  • reduced prospects of parole may cause the offender anxiety, also making their time in prison more difficult.

The process is complicated by the "chicken and egg situation that applying to have a visa reinstated can’t start until it has been cancelled, but it is the sentence that triggers the cancellation. But in turn the sentence needs to be informed by whether the visa will be cancelled," Professor Freiberg says.

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