A Brisbane lawyer has accused the Department of Immigration and Border Protection of "interference with the administration of justice" after two of his clients awaiting criminal trial had their visas stripped and were thrown in detention centres despite being granted bail by courts.
Bruce Peters is representing two men, on unrelated charges, who are foreign citizens but were granted visas to visit and work in Australia: a Solomon Islands man, who we'll call Simon, facing charges of using the internet to procure sex with an underage girl, and a man from New Zealand, who we'll call Ben, who has been charged with a historical sexual assault.
After being charged by police, the men had been granted bail by judges in their respective cases ahead of their court dates later this year. Ben was initially refused bail and held in custody for two months, but a Supreme Court judge later overturned the initial bail decision and granted his release.
Peters claims that -- despite courts assessing the flight risk and risk to society posed by the two men, and ruling that they should be allowed back into the community to await trial -- both Simon and Ben were intercepted and detained by Australian Border Force agents within days of being granted bail, had their visas revoked and were sent to detention centres.
Simon has been sent to a facility in Western Australia, despite residing in Queensland, while Ben was sent to Christmas Island. Both men have been in detention around three months. Peters claimed he had been allowed almost zero access to the men, sharing just one phone call with Ben and only a "five minute" conversation with Simon.
"It's presumptuous. With [Ben], the Supreme Court granted him bail, and the justice remarked he was not sure why he was detained. The family paid $5000, and Border Force over-rode the decision of the court," Peters told HuffPost Australia.
"Their access to their lawyer has been curtailed. How can I build a defence when I can't get access to them?"
"It's a denial of natural justice."
Under section 501 of the Migration Act, visas can be cancelled on the basis of a serious criminal conviction or past criminal record. The two men Peters represents have not been convicted of their crimes, only charged, but under broad powers granted to the Minister for Immigration, the minister can cancel a visa simply by deciding that a person is "is not of good character".
"You will not pass the character test if... your past and present criminal or general conduct shows that you are not of good character," states a fact sheet on DIBP's website.
Criminal barrister Greg Barns, of the Australian Lawyers Alliance, called the treatment of Peters' clients and the powers available to cancel visas "outrageous". He said the situation was unfortunate, but not unheard of, saying he had had clients of his subjected to the same.
"The Department of Immigration has no respect for the presumption of innocence, no respect for the rights of defendants to properly instruct their lawyers and it has no respect for rights of individuals to stay close to their families and support networks during what is a very stressful time," Barns told HuffPost Australia
"This is a department which regards the rule of law as a luxury not a necessity. It happens. They revoke visas when there's no finding from a court yet. This is unfortunately a very common practice."
"It's the sort of practice you'd expect in an authoritarian country with no respect for court processes, not the sort of thing you'd expect in a democracy."
Peters was outraged over several facets of the case. First, Peters claimed that since the men do not have any legal status to be in Australia after their visas were cancelled, they should have been deported instead of being placed in detention. In similar cases, Peters claimed, people in such situations would be granted a "justice visa" to give them standing to remain in Australia, but neither man has been given such a visa.
He said he was preparing a case to accuse the government of falsely detaining the men, considering they now had no legal right or visa to remain in Australia.
"They don't have a business visa, they've been refused a justice visa, they should deport them. [Border Force] are manipulating the act. If he's had his visa cancelled, been refused a visa, the only thing under the act is to deport him," Peters said.
Secondly, Peters said, time detained in a detention centre awaiting trial will not count as time served against a future jail term, unlike time served on remand if bail is refused. That is, if the men are detained for months then sentenced to a term of imprisonment, their time in detention will not count as time served, where time served in remand would be.
"Time in detention can't be declared under a sentence as time served. Detaining them is a direct interference with the administration of justice. It's a loophole of the act," Peters said.
Thirdly, the men had initially been fee-paying customers of Peters' firm, but now with their visas revoked and residing in detention, they are relying on taxpayer-funded legal aid. The taxpayer is also footing the bill to house and feed the pair, as well as to fly them back to Queensland from WA and Christmas Island.
Peters said the cases were a worrying precedent that could damage Australia's legal reputation on the world stage.
"All of this being done on back of the taxpayer. These are two cases that involve immigration, so anyone who comes to Australia on a visa can expect kangaroo justice, they can expect detention, and to be denied legal access or have that access made difficult," he said.
"It's a matter of policy. Australia will get a reputation that you can expect to be put in detention no matter the charge."
A spokesperson for the Department of Immigration and Border Protection said the department was "aware" of the two men but unable to comment further on the specifics of their cases, and defended against Peters' claims that he had only limited access to his clients.
"General visa cancellation provisions under the Migration Act 1958 allow for visa cancellation on a number of grounds, including non-compliance with visa conditions or where the presence of the visa holder in Australia is or may be a risk to the health or safety of the community," the spokesperson said in a statement.
"Immigration Detention Facilities have communication facilities including landline phones, faxes, video-conferencing and internet rooms. Legal advisors are also able to call or email their client. Legal advisors are able to visit their clients in an immigration detention facility in line with departmental policy and procedures."
The department did not respond to questions about why the men had their visas revoked, or whether their visas would be reinstated if they were acquitted of the charges.
Peters said Simon was due back in court in mid-November, while he was still trying to get enough access to Ben to start working on a defence in his case.