Over the past few weeks there has been a very public conversation about whether a person charged with a serious criminal offence should be allowed to continue to perform in their normal employment while those charges are dealt with by the Court.
The person in question is Mr Jack de Belin, the charge is aggravated sexual assault and the outcome was that the NRL stood Mr de Belin down on a ‘no fault’ basis while his charges remain pending before the Court.
According to today’s news reports Mr de Belin has applied to the Federal Court of Australia for orders that would prevent the NRL from standing him down. We’re not employment lawyers (and this isn’t even a straightforward employment matter, given that the NRL is not Mr de Belin’s direct employer), so we have no idea whether the NRL does (or does not) have the power to stand a player down pending resolution of serious criminal charges.
But this much we do know: If Mr de Belin was born in New Zealand and was present in Australia as the holder of a Special Category (subclass 444) Visa, the issue would not be whether he should be allowed to keep playing football, but whether he should be allowed to remain in Australia at all. And the answer of the Minister responsible for administering the Migration Act 1958 (or, more likely, his delegate) would likely be a resounding no. Mr de Belin’s visa would very likely be cancelled under s 116(1)(e) of the Migration Act.
Section 116(1)(e) gives the Minister responsible for administering the act the power to cancel a temporary visa held by a non-citizen in Australia if the Minister (or their delegate) considers that the visa holder’s presence in Australia might be a risk to the Australian community. This includes subclass 444 visas held by most New Zealand citizens in Australia, including those playing sports professional.
As we have previously written, the Minister can (and does) form a satisfaction that a person might be a risk to the Australian community solely on the basis that the person has been charged with, but not yet convicted of, an offence. We have seen decisions where the Minister’s delegate has formed a satisfaction that a non-citizen’s continued presence in Australia might be a risk to the Australian community based on the mere fact that the non-citizen has been charged with a single offence (offences less serious than aggravated sexual assault) and otherwise has no previous convictions or charges.
While some have tried to argue that it is unlawful for the Minister (or his delegates) to form a satisfaction that a person might be a risk based solely on unproven charges, the Courts have confirmed that it is not unlawful for the Minister to do so. The Minister (and his delegates) continue to exercise their power to cancel visas held by non-citizens based solely on unproven charges.
We have previously written about what we consider to be the underlying systemic difficulties of relying on a decision of a police officer to charge a person with a serious criminal offence as the sole basis to take adverse actions against that person (in the context of visa cancellations). Those difficulties apply more or less equally to Mr de Belin’s situation.
But, at least Mr de Belin will be given the opportunity to defend the charges brought against him (regardless of the outcome of his application to the Federal Court of Australia). Many of those cancelled under s 116(1)(e) are removed from Australia before they are given the chance to defend themselves at trial. Many are forced to choose between voluntarily sitting in immigration detention for months (if not years) before their cases come to trial or return to their country of citizenship to live free in the community. We know of at least two people whose charges were dropped after they returned to New Zealand (by which point their removal meant that they lost the right to be granted a subclass 444 visa if they were to return to Australia).
If our experience with visa cancellations under s 116(1)(e) has taught us anything it is that the presumption of innocence means relatively little outside of the confines of criminal law processes.