How should the visa cancellation powers vested in the Minister under the Migration Act be used?

Should a visa holder who commits a serious criminal offence be “thrown out” of Australia, no matter what?

Should that frequently used formulation that: “a person who commits a serious criminal offence should expect to forfeit the privilege of remaining in Australia” be applied uniformly and without exception?

Or should the visa cancellation power be exercised in a more careful and nuanced way, with regard being taken to the  unique circumstances of each individual visa holder’s case?

These important questions have been brought to public attention by a story that was broadcast last night on the ABC’s “7:30 Report”.

The news report told the story of Chamari Liyanage, a 36 old physician who is a citizen of Sri Lanka.

According to the story, Dr Liyanage was convicted by a jury in Western Australia of the crime of manslaughter, for killing her husband, also a doctor, with a mallet. She was sentenced to a 4 year term of imprisonment.

Do we need to read any further?  It’s unarguable that she doesn’t satisfy the character test. And she’s still in prison. So the mandatory visa cancellation provisions of the Act are enlivened.  What additional consideration is needed?

Well, what about these facts: According to the ABC story, Dr Liyanage was subject to extreme violence and abuse at the hands of her husband. The details are beyond horrifying: Dr Liyanage claimed that she was beaten, forced into having affairs with other people and forced to perform sexual acts to be streamed online, among other shocking and terrible things. She said that she remembered nothing of what happened on the night she killed her husband. At her criminal trial, evidence was given by forensic psychiatrists that suggested that it was possible that the psychological  trauma and abuse that she had suffered may have caused her to “flip over” into a state of automatism, in which a person’s mind acts independently of their body.

All the while that Dr Liyanage was being subjected to abuse by her husband, she was working as a physician in Australia. According to her migration lawyer, Alisdair Putt, she “worked extremely hard on behalf of patients, often in a life-saving role”.    So it is clear that Dr Liyanage has medical skills that would be of tremendous value to the Australian community.

The sentencing judge in Dr Liyanage’s case is reported as having observed that: “Apart from this offence you have been it would seem of exemplary character” . And the judge also noted in his remarks that she is “not a person at risk of reoffending”.

The ABC story also notes that Dr Liyanage holds fear for her safety if she were to be returned to Sri Lanka.

Her case is apparently before Minister Peter Dutton for review of the cancellation decision.

Is this not a situation that is appropriate for a compassionate response by the Minister?

Especially in light of the circumstances that indicate that the offence was an isolated incident, one that resulted from the extreme abuse that Dr Liyanage had suffered? And in light of the fact that Dr Liyanage apparently poses no risk of harm whatsoever to the Australian community, and that through her medical skills she obviously has so much to give back?

 

Courtesy of Michael Arch on