‘Disturbing’: Coalition demands answers after Victorian judges are trained on how to avoid deportation laws

Federal immigration law allows the Commonwealth to deport criminals who are not Australian citizens, provided they have been in the country for less than 10 years and have received a prison sentence of more than a year.

Under this law, the visas of 244 migrant criminals were canceled in 2023–2024, including 50 for drug-related offenses, 27 for sexual offenses against children and 13 for rape and indecent assault.

But Victorian judges have reportedly been given instructions on how they can prevent criminals from being deported following their convictions.

The training was part of CPD provided by the court, and the Herald Sun revealed that judges were lectured on how to avoid prison sentences for drug-trafficking offences.

The training also included one hypothetical example of a Vietnamese student who had just arrived in Australia and repeatedly sexually assaulted an eight-year-old boy.

The judges recommended that the defendant be sentenced to 11 months and 15 days in prison so that he would not be deported after serving his sentence.

Federal Immigration Minister Dan Tehan described the reports as “disturbing”, telling SkyNews.com.au that Australians deserve to know whether Labor governments in Canberra and Melbourne are supporting the training.

“The federal and Victorian Labor governments need to clarify whether they support adapting sentencing to ensure that criminals avoid deportation,” Tehan said.

“Australians expect anyone found guilty of a crime to be convicted on the evidence presented to the court, so as not to circumvent federal immigration laws.”

Victorian Premier Jacinta Allan said on Monday she had raised concerns about the training with Attorney-General Jaclyn Symes, but deferred it and said the courts were independent.

“I have some concerns about today’s report, I have spoken to the Attorney General and she will be speaking to the courts about this,” Prime Minister Allan said during a press conference.

“I leave these conversations to the lawyer and the courts, confirming that it is the courts that conduct such training.

“They are an independent body in this state (and) I will not be making public comments other than to say the report raised some concerns and counsel will discuss that with the courts.”

Shadow Attorney-General Michael O’Brien described the Prime Minister’s response as “not good enough”.

“Premier Jacinta Allan has been writing the laws of this state for 10 years. She and her government wrote the sentencing law that allows these loopholes to be created,” O’Brien said.

“It’s high time for Prime Minister Allen to stop talking about an important issue and start taking action, and the first thing she should do is plug this loophole.”

O’Brien said criminals should not receive “discounts on their sentences because judges want to keep them in Australia”.

“If Victorian judges are deliberately lenient on drug dealers and sexual assault perpetrators to protect them from deportation, it shows that the criminal justice system in this state is fundamentally broken, with people committing serious crimes such as drug dealing and sexual assault , they should feel the full force of the law,” he said.

“The Liberal Government will consider whether deportation should be included as a sentencing factor at all, as it clearly appears that some judges are using – and possibly abusing this proposal – keeping terrible criminals in Australia when in fact the law requires them to be deported “

A spokesman for the court confirmed to the Herald Sun that a professional development day was held for magistrates’ court officers.

“The key of the day was the verdict. “The law treats deportation as a ‘relevant circumstance’ for sentencing purposes,” the spokesman said.

The Ombudsman said educational sessions often use different scenarios to highlight relevant legislation and discuss the proper application of legal principles.

“Scenarios are often based on settled cases and can be modified to focus attention on a particular aspect of the law, for example section 501(3A) of the Migration Act 1958 (Cth),” the spokesman said.

“Each judicial officer is an independent decision-maker in each case before him and acts on that basis.”

According to the Judicial College of Victoria, Victorian courts may consider deportation to be a significant factor in sentencing if it makes the burden of imprisonment more onerous or is likely to result in the offender losing the opportunity to settle permanently in Australia.

However, courts should not consider deportation as a mitigating factor unless it would actually create hardship for the perpetrator and could only be considered if there was concrete evidence or a concession from the prosecution.

Government data shows that the number of non-citizen criminals having their visas canceled has fallen by as much as 75 percent over the past five years, from 1,015 in 2019-2020 to 244 in 2023-2024.