Discrimination, double punishment & death: the case against deportations

Sophie Ellis2Solicitor Sophie Ellis gave evidence at a public hearing of the Inquiry into Migrant settlement outcomes at Roxburg Park in Melbourne’s West in April 2017.  This is the transcript of her evidence.




Migrant settlement outcomes (Public)
Wednesday, 12 APRIL 2017

CHAIR (Jason Woods MP) : Welcome. Although a committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of parliament and, therefore, has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I invite you to make a brief opening statement before we proceed to the discussion.

ELLIS, Ms Sophie, Lawyer, Flemington and Kensington Community Legal Centre: The committee will have received our Submission. I am appearing on behalf of the Flemington and Kensington Community Legal Centre, which runs a free legal service in the Flemington-Kensington area. We also have a migration service and run a police accountability project. We work with young people and a range of different communities within the Flemington-Kensington area and across the state.

Specifically, today, I would like to address a particular area of the committee’s inquiry. That is the context in which this inquiry is taking place, which I will come to in a minute, specifically the affects of section 501 of the Migration Act, the proposals, as we understand it, to potentially broaden section 501 and the grounds upon which visas could be cancelled, particularly in the context of young people.

As is made clear in our submission, Flemington and Kensington Community Legal Centre is very concerned about the context in which this inquiry is taking place. In our view, it is taking place in the context of racialised media coverage, which has been intensifying since the Moomba incident in Victoria in April last year. It is racialised media coverage that is not grounded in factual reality.

We see increasingly and frequently reference to, for example, the ‘Apex gang.’ This is despite Victoria Police stating on numerous occasions that the Apex gang are young people who are not from a particular ethnic group committing crimes and, more recently, that, in fact, the Apex gang is not a gang. As recently as February, Victoria Police Assistant Commissioner Stephen Leane gave a press conference, which The Age reported on, where he stated that, ‘Apex was not a gang. Rather, it was a group of mostly 14 to 19-year-olds who connected on social media, who are not necessarily based from the same suburbs or from the same cultural background.’ He also said that, ‘the perception of the group as an organised and vicious gang which terrorised huge chunks of Melbourne’ had been cultivated by the media and had not been the reality. The reason I give that quote is it is extremely concerning that this racialised media coverage is ongoing when it is not grounded in factual realities. Our concern is that media coverage recently has been a frenzied and increasingly strong echo chamber for extreme calls for measures, such as deportation through false associations such as black crime associations. It is a message through our media that is misleading, and it is toxic to our community.

Our legal centre does not feel that such knee-jerk reactions, including the rush to implement any kinds of tough-on-black-crime measures, which broaden deportation laws, that are grounded in the context of heightening fear around racialised crime perceptions are helpful at all to the Australian community. In fact, it is damaging community cohesion and it is targeting new Australians.

From our centre’s experience, what this is leading to is an increase in racial profiling of young people of colour. Anecdotally, we hear that stops by police of young people of colour are on the rise. Racial profiling is not an effective form of policing. It should not be a crime in Australia, or in Victoria, to be a young person of colour. It is leading to excessive and unfounded interaction with an already overloaded criminal justice system. From our experience, young people of colour who have valid defences and who are innocent of certain crimes, feel pressured to seriously consider entering a plea where they might not otherwise, because of considerations around things like deportation that arise under the 501 provisions of the Migration Act. That is extremely concerning. It is impacting upon the proper course of our criminal justice system.

Our other concern is that this inquiry is considering, as we understand it, potentially, the deportation of young people who are under 18, so children. In the context of media coverage, focusing on particular community groups, such as people from South Sudan, we are concerned about any changes that allow children to be deported, particularly to countries where there is currently famine—South Sudan has recently been declared as a country where there is a famine—and prolonged and escalating civil war. Sending children back to these places, where our own department does not encourage Australian citizens to go, is really akin to a death sentence, in our view. It is also being carried out.

Deportation and visa cancellations are carried out by the executive. When the minister carries out a decision to cancel somebody’s visa it is a form of extrajudicial punishment that is taken outside of the proper rubric of the court system and the proper examination by the courts. It is really akin to double jeopardy. We are talking about people who have already served time in custody for a crime they have committed. Subjecting them, upon release, to another punishment which could have implications as grave as death for that person is extremely serious. It needs to be very carefully considered. If we are subjecting young people to this it really is an offence against basic Australian principles of dignity and fairness. It is against international human rights conventions such as the Convention on the Rights of the Child, as well as against the importance of placing children’s best interests and the rights of families at the centre of decisions.

While we are talking about the context of young people in particular, I just want to share a couple of case studies that are relevant to our legal centre of people who are currently facing deportation or cancellation of their visas. We are talking about young people who are under 25 who arrived in Australia from refugee migrant backgrounds. They arrived as children, I should say. They arrived with very precarious access to housing and high rates of homelessness. They came to Australia as refugee children after losing family members to war.

We are talking about mothers and fathers, brothers and sisters being killed before them. They suffered immense trauma. They witnessed bodies in the street. They have suffered mental illness. Some have acquired brain injury. They have minimal education and minimal English. Generally, they enter the criminal justice system, often to juvenile detention, following drug dependency issues. Having served time in custody for a crime they have committed, they then face the extra punishment of being deported.

As a principle, Australians—new or old—should be treated equally before the courts, and not discriminated against because they are wealthy or not, because they are white or not, or because they are new or not. There are young people in our community who are extremely troubled by what is going on at the moment in terms of the media saturation and coverage around racialised crime reporting which is not grounded in factual reality. White children, black children, people of colour—everyone is subjected occasionally to the criminal justice system, but how they are treated in the criminal justice system should not be differentiated based on the colour of their skin.

Our concern is that deportations are continuing to increase and that we will see further increases in deportation. It is extremely difficult to provide legal services to people who are in custody. This is especially problematic given the very short time frames to object to visa cancellations. I will let the committee provide questions. To conclude, I think it is important to remember that we have a shared responsibility to all people in our community. If we had Australians who were born in this country committing crimes, we would not be punishing them with further punishment upon release—we would not be able to. I do not think there is any justifiable basis for doing so simply because of someone’s birthplace. I will let the committee ask any questions about our submission or anything about what I have just mentioned.

CHAIR: When it comes to a migrant in police custody locally, for example, how does your legal service get notified? Is it a youth worker who rings up? How do you get the initial engagement?

Ms Ellis: We might get called up by the police themselves, from the station, or it might be a youth worker. Occasionally, we will have young people—or a guardian or a member of their family—come to us, after release, to seek legal assistance.

CHAIR: One of the concerns we have as a committee is the early intervention to make sure someone does not commit further offences. At the moment, there is no direct contact between, say, Victoria Police and Immigration. We did hear this morning that if Victoria Police are targeting someone they will make that phone call. But when it comes to early intervention—say it is an African. They are 19 years of age and have been charged by the police. Would your service, apart from offering them legal advice, put them in contact with someone else who can help them out and say, ‘Hey, listen; you’re going down the wrong path’?

Ms Ellis: A legal service is there to provide legal advice—

CHAIR: I understand.

Ms Ellis: and not to provide guidance upon their moral behaviour.

CHAIR: But if you see someone there—what we are trying to do is stop further offences.

Ms Ellis: And stop it happening in the first place. Yes, that is really important. We would say that preventative measures are the most important, and investing money to ensure that people do not enter the criminal justice system, in the first place, is the best way that we can invest funds. A lot of studies show that justice reinvestment is highly successful.

Going back to that question, where there are issues for anyone in our community, regardless of their racial background, and they are in need of some assistance, we might link them up with a social worker. We might link them up with a local service provider—for example, if they have drug and alcohol issues. We certainly have a view to trying to provide and link them with supports that can assist them. It is definitely a very important thing.

CHAIR: I understand it is not your—I am just trying to work out where the interventions are in place. With a young person who is in custody and a migrant, how often are you finding that they are disenfranchised, that they cannot get a job or that there is a lack of education?

Ms Ellis: It might be good to take that on notice and get a few comments from some of our solicitors on that as well.

CHAIR: Sure.

Ms Ellis: I work, specifically, within the police accountability project. We have solicitors in a generalist service as well. My particular project looks at young people and how police do their policing, basically, in ensuring there are adequate safeguards for when there are issues with policing practices.

An issue, at the moment, is where there is a heightened sense of concern around particular racial groups committing crimes. Young people from those groups are at a heightened risk of being profiled by police and are at a heightened risk of disengagement. When a young person goes to university and is stopped, repeatedly, for no apparent reason, because of the colour of their skin, you can see how they start to feel like they are not a member of our community and they are not being embraced by our community. That is a very real risk, with the racialised reporting that is going on.

I have certainly had conversations that stick in my mind about young people who have expressed concern and disengagement and worry about how they can integrate when they are subject to such intense monitoring.

Ms VAMVAKINOU: Can I just pick you up on that, Sophie?

Ms Ellis: Yes.

Ms VAMVAKINOU: I am assuming you are dealing with a large number of young people in the course of your work. The submission is a very good one. I was going to ask you to give us a bit of an understanding of the potential motivating influences that may see some young people end up in strife. Also, we have become aware that the narrative out there is having a worrying impact on a lot of young people, especially from particular communities. Even as a parent, I understand that would be a counterproductive influence and that could lead to other issues. Are you able to speak to those?
Ms Ellis: I think there are general factors that tend to come up when you are looking at a young person from whatever background who is finding themselves involved in the criminal justice system—things like having difficulty engaging with school for whatever reason. It might be bullying, difficulty getting to school. It might be issues at home. It might be homelessness that is affecting the entire family. It might also be issues around mental health and trauma and associated drug or alcohol dependencies or it might be not having adequate supports in the community to combat some of those things. I think there is a broad spectrum of things we see in our young people who are coming into contact with the criminal justice system, which are points of intervention that we can meet.

Ms VAMVAKINOU: How different are they now to previous generations of young people? We are a country that has had generations and waves of migrants and young people from different communities so how different, if at all, is it, do you think from the mainstream? Because young people have all sorts of different challenges perhaps to my generation but they might be mainstream young people issues; you cannot isolate them to one particular group of young people from one to particular place. Is there anything that is different that we should be aware of, that maybe the services are not picking up or should pick up? I am trying to look at the services.

Ms Ellis: Do you mean young migrants today versus those in the past?


Ms Ellis: I am not sure I feel qualified to speak to that only because of my own lack of experience with migrants in years past. That is a good question to take on notice and for our centre to draw on the expertise of one of our migration agents who has had a lot of experience—

Ms VAMVAKINOU: If there are any differences; there may not be.

Ms Ellis: I do not know if there are particular differences. Certainly I would imagine that waves of successive migrants have faced these issues. Australia has taken people from war-torn countries, for example, over many decades who have faced similar challenges and discriminatory policing. We know, for example, the Vietnamese community in the west in Victoria has language barriers. So I do not know whether there are particular challenges that are different but I can take it on notice and, if we have something to add, I can definitely send that to the committee.

Mr NEUMANN: There is a lot of stuff in your submission that is very helpful. In your submission, you seem to say that there is no purpose to section 501, the character test, in the Migration Act and it was sort of a double punishment. Is that what you are saying to us?

Ms Ellis: Our concern with the 501 is that it is a very severe punishment really. It is not subject to the same judicial review principles that you would see ordinarily in our criminal justice system. Although there might be a place for it, our understanding is the committee is looking at expanding these provisions. There are already a raft of issues—

Mr NEUMANN: The committee is not necessarily looking to expand on these; it is looking at the character test and at 501. You are presuming we are deciding that way.

Ms Ellis: Yes, and maybe that presumption is incorrect. I understand from comments by Minister Dutton that there is going to be some thought given to whether young people under 18 may be subject to visa cancellations under 501 and that there might be some expansion of the powers in 501 to meet that potential new cancellation I suppose of young people’s visas. I suppose that was where I was angling with those comments.


Ms Ellis: If it is not something that the committee is looking at, I apologise.

CHAIR: Sorry for jumping in, but in actual fact at the moment 501 has that power in place because there is no age limit associated with the 501 character test.
Ms Ellis: My understanding is that that is the case but currently the policy has been that young people—

CHAIR: No child.

Ms Ellis: no child has been deported. We would be concerned if that were to change and young people were subjected to mandatory cancellations.

Mr NEUMANN: My issue was that you seemed to say that there was no place whereas I think if you walked down an average street in Melbourne, Sydney or Brisbane you would find people in the general Australian community saying, ‘What about people who have committed crimes against humanity, genocide or war crimes and want Australian citizenship and are over here?’ If there has been an adverse assessment under the ASIO Act and they are a direct risk to the security of the Australian public, the average person in Australia would think there were justifiable grounds for those people being deported from Australia.

Ms Ellis: It was not my intention to say that there is no place. I was focusing on that particular context. Also, as it stands, the cancellation provisions are quite wide. They cover a range of conduct. In the scale of things they are not all at that end with war crimes and genocide. It can capture crimes of—

Mr NEUMANN: Very serious sexual crimes against children.

Ms Ellis: That is right. It can also capture property offences. We are not just talking about what you might say are the most grave crimes that offend decency. Certainly there is a place. Those crimes are horrific—

Mr NEUMANN: Torture and slavery are mentioned in 501.

Ms Ellis: Exactly. They are absolutely horrific. There are also criminal activities that can be captured by those provisions which are nothing like that. It can capture, as I said, property offences. It is shocking to think we are talking about deporting children for those offences.

Mr NEUMANN: Thanks for clarifying that.

Ms VAMVAKINOU: They can also capture other offences that incur more than 12 months in jail that have nothing to do with some of the things that are being written about at the moment. I understand it is very complex. It has potentially unforeseen consequences. Also the statistics given by the person before you indicated that by far the largest number of participants in criminal activity, right across the board and age groups, are Australian born and 501 does not apply to Australian-born people.

Ms Ellis: That is right.

Ms VAMVAKINOU: As a tool to fix something that may not be there it may not be the most efficient either.

Ms Ellis: That is right. And these cancellations are not taking place in public. They are not subject to the kind of scrutiny that we see through our judicial system, where normally punishment is played out before the courts and before the public. It is a very different context that we see these cancellations take place in.

CHAIR: Thank you for your attendance here today. If the committee has any further questions, they will be put to you in writing. I believe you are going to answer a few questions on notice. That will be very helpful. You will be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors. Thanks so much.

Ms Ellis: Thank you.

Important Links


Machetes, migrants, and misinformation: why Africans are copping the blame for Melbourne crime wave, David Lewis, ABC Radio National Background Briefing, 7 May 2017.

“When 200 youth stormed Melbourne’s Moomba festival in Federation Square last year, Sudanese youth were blamed for the gang violence. A new federal inquiry is examining whether they should be deported. But as David Lewis investigates Sudanese youth are being blamed for many crimes committed by others…

Apex crime gang declared a ‘non-entity’ by Victoria Police, Sarah Farnsworth, ABC News, 12 April, 2017

“Victoria Police have declared the Apex crime gang a “non-entity” saying it is no longer and never was predominantly African…

Inquiry into Migrant Settlement Outcomes

Submissions Page

Flemington Kensington Community Legal Centre

FKCLC Submission into Migrant Settlement outcomes



















“We are talking about people who have already served time in custody for a crime they have committed. Subjecting them, upon release, to another punishment which could have implications as grave as death for that person is extremely serious.”














“As a principle, Australians—new or old—should be treated equally before the courts, and not discriminated against because they are wealthy or not, because they are white or not, or because they are new or not.”



















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