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

Federal immigration law allows the Commonwealth to deport non-Australian nationals if they have been in the country for less than 10 years and have been sentenced to more than one year in prison.

The law was used to cancel the visas of 244 migrant offenders in 2023-24, including 50 for drug offences, 27 for sexual offenses against children and 13 for rape and indecent assault.

But Victorian judges have reportedly received instructions on how they can ensure criminals do not face deportation when they are sentenced for their crimes.

The training was part of a professional development program run by the court, with the Herald Sun reporting that magistrates were given lectures on how to avoid jail time for drug offences.

The training also included one hypothetical example of a Vietnamese student who had just arrived in Australia and raped an eight-year-old child multiple times.

Magistrates were advised to sentence the accused to 11 months and 15 days in prison to prevent him from being deported at the end of his sentence.

Federal Immigration Minister Dan Tehan called the reports “worrying”, telling SkyNews.com.au Australians deserved to know whether the Labor governments in Canberra and Melbourne supported the training.

“The Victorian Federal and Labor governments must explain whether they approve of tailoring sentences to allow criminals to avoid deportation,” Mr Tehan said.

“Australians expect that anyone found guilty of a crime will be sentenced on the basis of the evidence presented at trial, so as not to circumvent federal immigration laws.”

Victorian Premier Jacinta Allan said on Monday she had raised concerns about the training to Attorney-General Jacqueline Symes but shelved it and said the courts were independent.

“I have some concerns about the report today and I have spoken to the Director of Public Prosecutions and she will be speaking to the courts about this issue,” Premier Allan said during a press conference.

“I will leave these conversations between counsel and the courts, recognizing that the courts provide this training.

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

Shadow Attorney General Michael O’Brien said the PM’s response was “not good enough”.

“Prime Minister Jacinta Allan has been writing the laws of this state for 10 years. She and her government wrote the Sentencing Act which allows these loopholes to be created,” Mr O’Brien said.

“It’s time for Prime Minister Allen to stop talking about the big game and start taking action, and the first thing she should do is close this loophole.”

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

“If Victorian judges are deliberately going easy on drug dealers and sexual offenders to save them from deportation, it shows that the justice system in this state is fundamentally broken. People who commit serious crimes such as drug trafficking and sexual violence must feel the full force of the law,” he said.

“The Liberal Government will consider whether deportation should be considered as a sentencing factor because it is clear that some judges appear to be using – and perhaps abusing – this proposal to keep terrible criminals in Australia when in fact the law provides for that they may be deported.”

A court spokesman confirmed to the Herald Sun that a professional development day had been held for magistrates’ court judges.

“The focus of the day was sentencing. The law considers deportation to be a “relevant circumstance” for sentencing purposes, the spokesman said.

The spokesperson said educational sessions typically use a variety of scenarios to highlight relevant legislation and discuss the correct application of legal principles.

“The scripts are often based on decided cases and can be modified to focus on a specific aspect of the law, such as section 501(3A) of the Migration Act 1958 (Cth),” the spokesperson said.

“Each judicial officer is an independent decision-maker on every matter before him, and they act on that basis.”

According to the Victorian Judicial Panel, Victorian courts may consider deportation as an important factor in sentencing if it would make the burden of imprisonment more onerous or would result in the offender losing the opportunity to settle permanently in Australia.

But courts should not consider deportation as a mitigating factor unless it would truly impose a severe burden on the offender, and it should only be considered if there is specific evidence or a concession on the part of the prosecution.

Government data shows the number of non-citizen criminals who have had their visas canceled has fallen by as much as 75 per cent over the past five years, falling from 1,015 in 2019-20 to 244 in 2023-24.