SANTILLA CHINGAIPE

The fate of a group of South Su­danese men await­ing de­por­ta­tion from de­ten­tion on Christ­mas Is­land is un­known, af­ter the clo­sure of the is­land’s de­ten­tion cen­tre. By Santilla Chingaipe.

The Saturday Paper - - Front Page -

Dur­ing the height of the panic about the so-called Apex gang, Is­sac Gatkuoth’s face was rou­tinely splashed across the front page of the Her­ald Sun. The pa­per de­scribed him as “a thug”, the “leader of the pack”. He was blamed for the 2017 sui­cide of Sam New­man, a teenager he had pointed a gun at dur­ing an armed rob­bery in 2015.

“Gatkuoth, who had not slept for two weeks, was high on ice when he pointed the shot­gun at Mr New­man,” the pa­per re­ported in a piece that quoted New­man’s mother, Denise Scott, at length. “My life’s still in tur­moil, and it’s be­cause of him. I know there were other fac­tors but he [Gatkuoth] played the big­gest part,” she said. “Af­ter see­ing what’s go­ing on out there, they shouldn’t get a sec­ond chance. They are de­stroy­ing peo­ple’s lives.”

Last year, af­ter the Her­ald Sun re­ported on Gatkuoth’s im­pend­ing re­lease from youth de­ten­tion, his visa was can­celled by the Home Af­fairs Depart­ment on char­ac­ter grounds un­der sec­tion 501 of the Mi­gra­tion Act.

As The Satur­day Pa­per re­ported ex­clu­sively at the time, the depart­ment planned to de­port the then 20-year-old, de­spite the fact he had al­ready served his sen­tence of more than a year for theft, car­jack­ing and drug pos­ses­sion.

Af­ter his visa was can­celled, Gatkuoth was trans­ferred to Christ­mas Is­land, where he was held await­ing de­por­ta­tion un­til the de­ten­tion cen­tre’s clo­sure a few weeks ago. In March, his sis­ter Mar­garet told me Gatkuoth wasn’t the only young man of South Su­danese de­scent on the is­land.

“There are many of them,” she said. “More than nine South Su­danese men are there.”

These men had also served jail sen­tences and had been punished to the sat­is­fac­tion of the courts. But they were now be­ing held in­def­i­nitely, with the ex­pec­ta­tion they would be de­ported – a kind of dou­ble pun­ish­ment, meted out once by the courts and then by the min­is­ter.

The re­cent clo­sure of the Christ­mas Is­land fa­cil­ity has prompted ques­tions about what hap­pens next to these men.

Con­cerns have been raised that de­ci­sions to refuse or can­cel visas un­der s501 may lead to breaches of Aus­tralia’s in­ter­na­tional hu­man rights obli­ga­tions, par­tic­u­larly that of non-re­foule­ment, a prin­ci­ple that pro­tects peo­ple from be­ing re­turned to a coun­try where they have rea­son to fear per­se­cu­tion.

Many South Su­danese peo­ple liv­ing in Aus­tralia were born in Su­dan be­fore the cre­ation of the in­de­pen­dent state known to­day as South Su­dan. The young coun­try has been in the grips of a civil war since 2013. Gatkuoth has lived in Aus­tralia since he was nine. His fam­ily fled South Su­dan when he was a child and spent a few years in refugee camps in Egypt be­fore be­ing granted hu­man­i­tar­ian pro­tec­tion in Aus­tralia.

Ac­cord­ing to Mar­garet, Gatkuoth has been trans­ferred from Christ­mas Is­land to Villa­wood Im­mi­gra­tion De­ten­tion Cen­tre, out­side Syd­ney.

The lo­ca­tion of the other men of South Su­danese ori­gin who were be­ing held on Christ­mas Is­land is un­known.

Refugee ad­vo­cates claim the de­tainees pre­vi­ously held on Christ­mas Is­land have been sent to Villa­wood, Mel­bourne Im­mi­gra­tion Tran­sit Ac­com­mo­da­tion and the Yon­gah Hill Im­mi­gra­tion De­ten­tion Cen­tre in Western Aus­tralia.

In a state­ment to The Satur­day Pa­per, a spokesper­son from the Depart­ment of Home Af­fairs says North West Point Im­mi­gra­tion De­ten­tion Cen­tre on Christ­mas Is­land was moved into con­tin­gency from Septem­ber 30, 2018 be­cause of a de­crease in the num­ber of boat arrivals.

“All de­tainees from North West Point IDC have been trans­ferred to other fa­cil­i­ties. For op­er­a­tional rea­sons, a break­down of de­tainee move­ments is not avail­able,” the state­ment said.

The ques­tions sur­round­ing the fates of these young men come as the Mor­ri­son gov­ern­ment has in­tro­duced leg­is­la­tion into fed­eral par­lia­ment seek­ing to amend sec­tion 501 of the Mi­gra­tion Act. The pro­posed changes will make it manda­tory for visas of mi­nors who com­mit a se­ri­ous of­fence to be can­celled by the depart­ment – a de­ci­sion pre­vi­ously only meted out by the home af­fairs min­is­ter. The amend­ments would also mean that any­one found guilty of an of­fence for which they can be jailed for two years or more – even if they aren’t given a jail term – can have their visa can­celled.

Since Scott Mor­ri­son’s as­cen­sion to the prime min­is­ter­ship in Au­gust, the Depart­ment of Home Af­fairs has, in ad­di­tion to Min­is­ter Peter Dut­ton, also in­cluded David Cole­man as min­is­ter for im­mi­gra­tion, cit­i­zen­ship and mul­ti­cul­tural af­fairs and Linda Reynolds as as­sis­tant min­is­ter for home af­fairs. Last week the depart­ment sec­re­tary, Mike Pez­zullo, told the Se­nate’s le­gal and con­sti­tu­tional af­fairs leg­is­la­tion com­mit­tee that all three min­is­ters have dis­cre­tionary pow­ers un­der the Mi­gra­tion Act. “In a prac­ti­cal sense, Mr Cole­man has the heav­i­est load, or bur­den if you will, of de­ci­sions,” he said, “but each of the min­is­ters, in­clud­ing the as­sis­tant min­is­ter, can take de­ci­sions un­der the Mi­gra­tion Act, be­cause they’re all sworn to ad­min­is­ter the act.”

Un­der the cur­rent laws, the min­is­ters have the dis­cre­tionary power to can­cel or refuse a visa on char­ac­ter grounds. A visa may be can­celled if the min­is­ter rea­son­ably sus­pects the visa holder fails the “char­ac­ter test” – a broad def­i­ni­tion that in­cludes ev­ery­thing from hav­ing a sub­stan­tial crim­i­nal record to es­cap­ing im­mi­gra­tion de­ten­tion to be­ing sus­pected of en­gag­ing in fu­ture “un­ac­cept­able con­duct”. A con­vic­tion of more than 12 months is con­sid­ered a “se­ri­ous of­fence”.

Ac­cord­ing to the most up-to-date data from the Depart­ment of Home Af­fairs, 1915 visas were can­celled or re­fused un­der s501 on char­ac­ter grounds in the 2016–17 fi­nan­cial year, and 682 were can­celled or re­fused in the fi­nan­cial year to De­cem­ber 2017.

The pro­posed amend­ments to the act do not ac­count for age, they ap­ply to any­one who has been found guilty of a crime and jailed for less than 12 months – in­clud­ing those un­der 18 years old.

The changes stem from rec­om­men­da­tions made by an in­quiry into mi­grant set­tle­ment out­comes by the joint stand­ing com­mit­tee on mi­gra­tion late last year. The com­mit­tee’s chair­man, Lib­eral MP Ja­son Wood, is a for­mer po­lice­man who has been vo­cal about what he’s re­ferred to as “crim­i­nal im­mi­grants”. He says the changes would elim­i­nate what he sees as a loop­hole in the cur­rent laws.

“The dif­fer­ence is, at the mo­ment [manda­tory can­cel­la­tion of a visa] is only for a per­son who com­mits a sex­ual of­fence against a child or they go in jail for 12 months or more,” Wood says. “This change is not re­quir­ing the per­son to go to jail – they can be con­victed of the of­fence.

“There’s only been – to my knowl­edge – four or five mi­nors who’ve had their visas can­celled. There’s one in par­tic­u­lar from New Zealand who com­mit­ted very vi­o­lent home in­va­sions and had his visa can­celled.”

The shadow min­is­ter for im­mi­gra­tion and bor­der pro­tec­tion, Shayne Neu­mann, says La­bor will look at the de­tail of the gov­ern­ment’s an­nounce­ment.

“La­bor strongly sup­ports the can­cel­la­tion or re­fusal of visas on char­ac­ter grounds un­der sec­tion 501 of the Mi­gra­tion Act,” Neu­mann says. “If the im­mi­gra­tion min­is­ter sus­pects that a non-cit­i­zen does not pass the char­ac­ter test, or there is a risk to the com­mu­nity while they are in Aus­tralia, they can use these pow­ers to can­cel their visa.”

The pro­pos­als are the lat­est in a series of mea­sures in­tro­duced by the Coali­tion to crack down on crime com­mit­ted by for­eign na­tion­als.

The Greens’ im­mi­gra­tion and cit­i­zen­ship spokesper­son, Nick McKim, says the gov­ern­ment is in­creas­ingly blur­ring the lines be­tween the im­mi­gra­tion and the crim­i­nal jus­tice sys­tem.

“Peo­ple should not be de­ported to face dan­ger in other coun­tries. If they have bro­ken the law in Aus­tralia, then they should face the pun­ish­ment de­ter­mined by our courts,” he says.

Sen­a­tor McKim says can­celling visas is not an ap­pro­pri­ate crim­i­nal jus­tice re­sponse.

“Peo­ple who have lived in

Aus­tralia for many years are part of the Aus­tralian com­mu­nity – whether they hold cit­i­zen­ship or not. If peo­ple com­mit crimes here, then it is for Aus­tralian courts to deal with,” he added.

McKim says there is a com­plete lack of trans­parency within Home

Af­fairs, par­tic­u­larly when it comes to im­mi­gra­tion de­ten­tion.

“It’s a se­cret ex­tra­ju­di­cial de­ten­tion sys­tem which needs the dis­in­fec­tant of sun­light shone on it,” he says. “As a sig­na­tory to the Op­er­a­tional Pro­to­col to the Con­ven­tion against Tor­ture, the gov­ern­ment needs to do far more to en­sure that peo­ple in im­mi­gra­tion de­ten­tion are treated hu­manely.”

De­spite La­bor’s sup­port for s501 and the im­mi­gra­tion min­is­ter’s pow­ers to can­cel visas, Neu­mann has also cast doubt over pre­vi­ous de­ci­sions made by Peter Dut­ton to can­cel visas when he was in charge of the im­mi­gra­tion portfolio.

“Let’s not for­get – there is sig­nif­i­cant doubt over whether Dut­ton is even qual­i­fied to sit in par­lia­ment – this casts le­gal doubt over ev­ery de­ci­sion he has made as min­is­ter, in­clud­ing can­celling the visas of se­ri­ous crim­i­nals,” Neu­mann says.

As for the fate of Is­sac Gatkuoth, his sis­ter Mar­garet re­mains hope­ful he’ll re­turn home soon.

“When they ar­rived in Syd­ney, they called us … He’s fine and things are bet­ter,” she said. “We hope he’ll get out now that he’s back in Aus­tralia.” •

Is­sac Gatkuoth.

SANTILLA CHINGAIPE is a jour­nal­ist and doc­u­men­tary film­maker.

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.