Governing Felonious Foreigners Through Crimmigration Controls in Australia: Administering Additional Punishments?

Abstract

Australian politicians have been categorical about their commitment to protecting the Australian community from the risk of harm that may result from criminal activity by non-citizens, proclaiming that there “is no place in Australia for foreign criminals”. This policy has been pursued through administrative, regulatory, means. Specifically, via the administration of the ‘character test’ under section 501 Migration Act 1958 (Cth), and through general visa cancellation powers governing ‘risky’ non-citizens. This chapter critically examines recent reforms to the ‘character test’,—reforms that introduced an unprecedented regime of mandatory visa cancellation for non-citizens considered to be of bad character—and the administration of those new powers. Non-citizens subject to mandatory visa cancellation include, notably, those possessing a ‘substantial criminal record’. These individuals are subject to administrative detention upon the expiration of their prison sentence, and are vulnerable to removal from Australia as unlawful non-citizens. Justified by politicians as a measure of effective crime control, visa cancellations on the grounds of bad character have increased by over 1, 400 per cent, as a consequence of the introduction of mandatory visa cancellation powers in December 2014. This chapter analyses and critiques the introduction, justification and administration of mandatory visa cancellation in Australia. The chapter argues that visa cancellation, consequential detention (‘immcarceration’), attendant legal processes, and the sanction of removal, are akin to double punishment, largely because non-citizens experience these measures as punitive.