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Police forces around the country are lobbying the federal government to deport non-citizens pointing to suspected crimes not proven in court, in a process experts warn undermines basic justice principles.
Non-citizens’ visas are automatically cancelled if they are sentenced to more than 12 months in prison, meaning they must pass a character test to remain in Australia.
NSW police wrote directly to Immigration Minister Peter Dutton.Credit: Matt Absalom-Wong
More than 90 per cent of people in immigration detention have completed prison sentences and are held while they fight deportation.
Written correspondence, released under freedom of information laws, shows police in NSW and Victoria have sought to influence this process by writing to the immigration minister or their department, pointing to suspected or alleged crimes outside the judicial process.
Legal experts said the practice undermined the presumption of innocence and claimed police used deportations as a shadow justice system when they could not secure convictions.
“There’s a lot of power in a system which happens behind closed doors, not open courts,” Canberra Law School professor of criminology Leanne Weber said. “If you can’t get a ‘result’ through a conviction and sentence, the immigration system is providing an alternative pathway.”
The revelation comes as the government’s immigration detention system is in crisis after the High Court found indefinite detention was unlawful, resulting in the immediate release of more than 80 detainees. In response, the federal government hastily imposed new conditions on released detainees, such as ankle bracelets and criminal sanctions for visa breaches.
This masthead asked police forces around the country about communication with immigration officials or the minister. In response police sources, who were not authorised to be quoted, acknowledged intelligence sharing often occurred outside the court process on an informal basis.
Officially, NSW, Queensland and Western Australian Police either did not respond directly to questions or explained that best practice was for the police to gather evidence to put before the courts and leave deportation decisions to the department.
“The role of WA Police is to investigate and charge anyone (both citizen and non-citizens) suspected of committing crimes in Western Australia,” a WA Police spokesperson said. “It is not the role of WA Police to deport non-citizens based on charges or convictions.”
A letter from a NSW Homicide Squad detective to then-home affairs minister Peter Dutton shows police pushed for the deportation of refugee Moses Kellie after the prosecutors found there was no reasonable likelihood of a conviction.
Sierra Leone refugee Kellie was detained after his visa was mandatorily cancelled in 2015 over a five-year prison sentence he received for armed robbery and assault. Kellie died in 2019 when he was found hanging in a cell bathroom in Villawood Immigration Detention Centre awaiting a formal decision on his visa. The NSW Coroner is investigating his death.
Kellie was charged with murder shortly after his visa was cancelled. He maintained his innocence and there was no forensic evidence linking him to the crime.
The Director of Public Prosecutions dropped the charges against Kellie due to the “difficulties with the admissibility” of police evidence and his history of mental illness. Three weeks later, NSW police wrote to Dutton advocating his deportation.
“There is no doubt from our perspective that Kellie murdered [Cawsey] by stabbing him in the chest with a knife,” the police wrote. “Kellie remains the prime, and only, suspect in [the] murder.
“We are of the firm view that Kellie poses an extreme risk to the safety of the Australian community if he were released from custody and allowed to remain in Australia.”
The letter listed other offences that police suspected Kellie of committing and a raft of allegations about his conduct in prison and outside, including that his family would not support him, which his family in Australia said was incorrect.
Dutton, Home Affairs Minister Clare O’Neil and Immigration Minister Andrew Giles declined to comment. A Home Affairs spokeswoman said the government used a range of powers to cancel visas to protect the Australian community, including failure of the character test, which was not limited to criminal records.
Police lobbied then-home affairs minister Peter Dutton to deport Kellie.Credit: Alex Ellinghausen
The department did not answer questions about how often police officers made contact or how those submissions were handled.
Weber, who reviewed the FOI documents, said the police approaches created a “shadow criminal justice system” with little transparency and fewer checks and balances.
“It’s a constant message that the public is getting – ‘these people are high risk’ – but there’s no clear opportunity to challenge where that assessment has come from,” Weber said. “Where it hinges on police intelligence, that doesn’t get tested in any rigorous way, this doesn’t conform to the normal legal conventions. We’re very concerned about that.”
She was critical of detectives providing opinions outside their expertise, such as Kellie’s ability to adhere to medication.
“Venturing into the mental health situation is a step too far even if you give them a long leash,” she said. “It’s not their field whatsoever … holding police to account is critical but particularly when the power imbalance looms so large.”
She said informal information sharing between police and the government was distorting the criminal justice system where police attention to one group can lead to increasing levels of deportation.
“There’s been this interplay between police, the criminal justice and immigration systems building up for a while. There’s been a ramping up of police using those tactics.”
Canberra Law School law professor Alison Gerard, who works with Weber, said the documents showed how immigration detention was used to hold people without charge after their prison sentence is concluded.
“The police made certain claims in appealing to then-minister Dutton about Mr Kellie’s actions, his family’s views, his conduct in prison and his mental health, some of which have already been shown to be false,” she said.
Victoria Police sent a letter to the department in 2018 about another person suspected of links to the so-called Apex crime gang.
This letter referenced 126 charges and 44 arrests, yet only 13 convictions for assaulting and resisting emergency workers and drug possession. “These offences are of a violent, anti-social and concerning nature and clearly show that he has no respect for authority or any orders imposed by the courts.”
The Victorian Police letter also includes untested claims the person had “links with other persons involved in serious crime, including members of the Apex gang and other street gangs” and he had squatted in an abandoned house with men of a similar cultural background.
Immigration lawyer and refugee advocate Hannah Dickinson said the letter correspondence gave a rare insight into the “black box” of often “clandestine” police approaches.
“Plainly, such communication breaches the presumption of innocence which undergirds our criminal justice system and impugns the perceived impartiality of Victoria Police,” Dickinson said.
Dickinson wrote to Victoria Police Commissioner Shane Patton last May to outline her concerns.
“It leads to the real possibility that a person’s visa will be cancelled by the department based on incorrect, unfounded, and unsubstantiated opinions provided with the purported authority of Victoria Police,” she wrote.
Acting superintendent Julian Horan acknowledged the letter: “The matters you raise have been taken under consideration and you will receive further advice in due course.”
A Victoria Police spokeswoman said information is shared with a range of agencies where it was appropriate and legal or for a law enforcement response.
“The sharing of information with the Department of Home Affairs in relation to any potential deportation process is done in line with strict Victoria Police policy,” she said.
“We strongly refute any suggestion that this information is shared instead of proceeding through any appropriate court processes. Any decision with regards to the deportation of any individuals is not a matter for Victoria Police.”
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