The title of this post is borrowed from the title of a 2009 paper by University of Melbourne academic, Michelle Foster. It was also prompted after reading the recent High Court decision in Chetcuti v Commonwealth of Australia [2021] HCA 25.
Chetcuti was born in Malta in 1945 and moved to Australia in 1948 where (apart from a couple of months in Malta in 1958) he lived continuously. As a result he was a British subject. In the intervening 70 (odd) years there have been lots of changes to the various “citizenship acts”, migration legislation and the law in respect of “aliens”. Unfortunately, Chetcuti never became an Australian citizen (although he could have).
As a result, when he was released from jail in 2017 after serving a 24 year sentence for murder, his absorbed person visa was cancelled (3 times actually – there were several review applications). I don’t intend to delve into the arguments before the High Court.
Instead, I want to make a couple of policy observations. I understand the visa cancellation power is an important one and everyone (including non-citizens) is expected to obey the law and the community should be safe. I don’t have any problems with cancelling visas and deporting people who don’t have long term ties to Australia and who commit serious offences. Chetcuti is “effectively” an Australian and had practically lived his whole life here. At what point should the policy be that someone like this is a homegrown problem and should be dealt with as such? What is the real utility of sending a 76 year old back to a country where he has no ties? He served his sentence.
Over the years I have been doing migration work, it is my perception that the 501 cancellation power is being used more frequently and the ‘threshold” of seriousness (to trigger the discretionary use of this power) has decreased. I know there are policy directions about the use of the power and there is a body of law established by the numerous review cases. I am just thinking that something’s not quite right.
Creative commons acknowledgment for the photograph.
