Lawyers have called on the Australian government to “stop playing with people’s lives” as it moves to re-detain dozens of people who were released from immigration detention over Christmas.
About 160 people had been released from detention due to a full federal court case ruling that aggregate sentences do not count for the purposes of the Migration Act’s automatic visa-cancellation provisions.
An aggregate sentence refers to when a person is given a single sentence for more than one offence.
Rather than appeal, the Albanese government pushed legislation through parliament restoring its original interpretation. It passed the Senate with the Coalition’s support on Monday despite outcry from refugee and asylum seeker groups about its retrospective provisions.
Dozens of people whose visas were affected by the bill are now being told they will be re-detained. Crossbench MPs and lawyers have raised concerns about the impact on individuals with a series of low-level offences.
‘‘These are some of the hardest conversations I’ve ever had with clients,” said Rachel Saravanamuthu, a senior solicitor at the Asylum Seeker Resource Centre.
“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.”
Saravanamuthu said people had “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.’’
A official notice, seen by Guardian Australia, says: “Your visa cancellation under section 501 of the Migration Act has been validated by operation of the Aggregate Sentences Act and is legally effective, and you no longer hold a visa. As such you are an unlawful non-citizen and may be detained and removed from Australia.
“As you no longer hold a valid visa to remain in Australia, you are liable for immigration detention and we encourage you to self-report to the Australian Border Force … Alternatively, it is open to you to depart Australia voluntarily.”
The Human Rights Law Centre, the Asylum Seeker Resource Centre and the Visa Cancellation Working Group issued a joint statement expressing “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 statement said.
“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.”
The independent MP for Goldstein, Zoe Daniel, said the government, having forced legislation through the parliament to effectively overrule a court decision, began re-detaining refugees immediately “putting them into what appears to be indefinite detention”.
“My concern was always that people with a series of low-level offences aggregated into one sentence would be caught up in an approach stated to be designed to protect the community from serious offenders,” she said.
“It appears this is what is happening.”
The government has argued its newly legislated amendments “make clear that a person who is sentenced to a term of imprisonment of 12 months or more does not pass the character test on the basis of having a substantial criminal record”.
That will apply regardless of whether the sentence is for a single offence or two or more offences and “regardless of the perceived seriousness of any individual offence”, according to the bill’s explanatory notes.
Ian Rintoul from the Refugee Action Coalition said the government “must stop its indiscriminate re-detention raids”.
“Section 501 was always an unjust and discriminatory section of the Migration Act, that allowed the government to hold people, potentially indefinitely, even for minor crimes, just because they are non-citizens,” he said.
“There must be complete transparency and full accounting of the fiasco surrounding the releases. Labor should spell out who was released and the circumstances of their re-detention.”
Comment was sought from the office of the immigration minister, Andrew Giles, on Sunday.
But Giles has previously told parliament the court judgment had “created an inconsistency in Australia’s visa cancellation regime, where some noncitizen offenders who, for multiple offences, receive an aggregate sentence of 12 months or more do not meet the criteria of having a substantial criminal record under section 501 of the Migration Act”.
“For example, a person who is sentenced to a term of imprisonment for 10 years for committing a violent offence would be found to have a substantial criminal record and would be liable for mandatory cancellation of their visa whereas if they were convicted for 15 years on the basis of two offences, they would not, simply because that sentence was in respect of more than one offence,” he said.
Touching on the prospect of re-detention for those recently released, Giles said retrospectively amending the Migration Act to validate past decisions was “important to enable those decisions that were to protect the Australian community to stand”.
