February 19, 2023
On Friday 17 February 2023, the Department of Home Affairs sent letters to several people recently released from immigration detention telling them to present themselves to be re-detained.
The letters were issued immediately after the passage of the Migration Amendment (Aggregate Sentences) Act 2023 which overruled a recent Federal Court decision and clarified that aggregate sentences of imprisonment counted as a single ‘sentence of imprisonment,’ attracting mandatory visa cancellation. Importantly, the legislation applied retrospectively so that people released after the Federal Court decision in December 2022 had to be re-detained.
Lawyers at the Human Rights Law Centre, Human Rights for All, Asylum Seeker Resource Centre and Visa Cancellation Working Group have expressed their serious concern at the re-detention of people without regard to their personal circumstances, including whether they are refugees and owed protection. Lawyers are aware of at least one person from a refugee background who had not received the letter and was taken back into immigration detention suddenly on their way to work, and must now restart what is an uncertain, intimidating and traumatic process to have their visas reinstated.
The people who received letters on Friday and are now faced with re-detention were allowed to live in the community with their families for weeks – meaning that an assessment was made by the Minister’s office that they posed no particular risk to the community. Each could have faced a separate cancellation with procedural fairness had there been safety concerns.
In particular, lawyers are concerned that people taken back into detention will be forced to restart the process to have their visas reinstated, meaning that the overall time they spend in immigration detention – with average periods of detention already unacceptable – may be effectively doubled. The government has not made it clear whether people who are re-detained will need to resubmit requests to have their visas reinstated or whether those requests will be fast-tracked given their uniquely vulnerable position. This will essentially mean that those re-detained will be doubly punished by the cancellation process. This will have a devastating impact on people’s mental health and wellbeing, including for their family and friends living in the community.
The Department of Home Affairs and the Australian Border Force did not respond to a request for information highlighting key issues and concerns regarding re-detention from lawyers ahead of issuing these letters.
It is incumbent upon the Minister to act immediately to resolve the status of people at risk of re-detention, by immediately deciding their revocation requests or exercising her detention intervention powers to provide for their release into the community.
Rachel Saravanamuthu, Senior Solicitor – Legal Advocacy at ASRC, said: “These are some of the hardest conversations I’ve ever had with clients. People have just begun to rebuild their lives – reunite with family, start new jobs and have hope for their future. All of their dreams have been ripped away so suddenly and they are devastated. They have already endured a traumatic visa cancellation process and protracted time in detention, and now have to experience this all over again which is particularly cruel. The government must stop playing with people’s lives.”
Alison Battisson, Director Principal Human Rights for All, said: “On Friday morning I had phone calls asking where loved ones had gone. I had calls from young men at work wondering how they would tell their mums they could be taken again. They were asking what they had done wrong. I had to explain they had done nothing wrong, only that a new law was created which captured them but didn’t consider their individual circumstances. And so they were liable to be detained in an immigration prison again.”
Media contact: Sam Brennan email@example.com or 0428 973 324
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