Australian Immigration Daily News

What is the appropriate relationship between the Department of Immigration and the criminal justice system?

Should the Department be able to effectively “override” a decision made by a magistrate to grant a criminal defendant bail by refusing a criminal justice stay visa, with the consequence that a non-citizen will be held in immigration detention pending determination of her or his criminal case?

What if the person is ultimately determined to be innocent of the charge?  Won’t he or she have been held in immigration detention improperly?

And is the Department in a “better position” to make assessments as to whether a person presents a “risk of harm” to the community than is the criminal justice system, which makes decisions of this nature about criminal defendants routinely?

These questions are raised by a case that was recently heard in the Federal Circuit Court of Australia, Jiang v Minister for Immigration (2018) FCCA 832 (10 April 2018).

The background of this case was that the applicant (Jiang) had originally arrived in Australia from China in April 2017 as the holder of a visitor visa.  A few days after her arrival, she was arrested, along with 5 other Chinese nationals who had been on the same flight with her, with the offence of “demanding property by threats with intent to extort or gain”. 

As a consequence of her arrest, the applicant’s visa was cancelled. She did not seek to challenge that decision.

In May of 2017, the applicant was granted bail, subject to specified conditions, by the Western Australian Magistrates Court. 

However, even though she had been granted bail, as an unlawful non-citizen the applicant was promptly taken into immigration detention, where she remained up to the time of the decision of the Federal Circuit Court in April 2018.

In other words, the applicant was held in immigration detention for nearly a year after she was granted bail.

One thing that is especially interesting about this case is that even though the Director of Public Prosecutions in Western Australia had asked the Department to issue a criminal justice stay visa (which would have enabled the applicant to be released to the community while awaiting her criminal trial) the Department nonetheless decided to refuse the visa.

The criteria for the grant of a criminal justice stay visa are specified in section 158 of the Migration Act.

They include that the Minister, “having regard to the safety of individuals and people generally” has determined, in her/his “absolute discretion”, that the visa should be granted.

It seems apparent that in this case the Western Australian police took a different view of the risk that the applicant would pose if she were to be released into the community than did the Western Australia Magistrates Court.

The police had provided material to the Department stating reasons why the applicant should not be granted a criminal justice stay visa and why she should not be released to the community.

These included allegations that the applicant and her co-defendants had been financially funded by another person to make their trip to Australia; that they had made direct threats to kill the intended victim and had threatened his family;  that they had stated that they could get other persons with guns to carry out the threats; and that, if released on bail,, that they would carry out their threats to kill, harm or endanger the life of the victim, his family and employees and that they would attempt to influence prosecution witnesses to withdraw their statements against the defendants.

It surely does seem, doesn’t it, that the police had raised very good justification for the applicant not to be released on bail.

Yet apparently, the Western Australian Magistrates Court was not persuaded that the applicant should not be granted bail.

The applicant did challenge the Department’s refusal to grant her a criminal justice stay visa and to release her into the community pending trial, but that challenge failed, as she was unable to convince the Federal Circuit Court that the refusal of the visa was affected by jurisdictional error.

The FCC (Judge Barnes) held that “it was open to the delegate to form his or her own view as to the appropriateness of the grant of a criminal justice visa, notwithstanding  that in the different context of a bail application a magistrate had determined that the risk was sufficiently low that (the applicant) need not be held on remand”.

So effectively the Migration Act confers power on the Department to make independent judgments as to whether a non-citizen whose visa has been cancelled on character grounds should be released from custody pending trial on a criminal charge. 

And the Migration Act thus empowers Departmental officers effectively to “reverse” bail decisions that have been made by the Courts.

What do you think about this?

Should the Department have such powers, or not?