The Australian government was on the verge of deporting an Australian permanent resident last year after China issued an Interpol red notice which falsely accused him of kidnapping.
Australian Federal Police officers raided the man’s home in 2015 after China’s deportation request, but found no evidence of the kidnapping charge alleged by Chinese police. Nevertheless, three years later in December of last year, the department threw him into immigration detention saying it would deport him.
The case was only dropped after the man, who is ethnically Chinese, challenged the deportation decision in the Administrative Appeals Tribunal.
During legal proceedings over the man’s case, a senior Home Affairs Departmental official argued he would receive a fair hearing in China, even though Chinese courts have a 99 per cent conviction rate and the man’s alleged crime took place at a time when immigration documents show was not in the country.
The man cannot be identified due to fear for his personal safety and the safety of relatives in China.
The man’s detention in Australia came just two weeks after refugee footballer and dissident Hakeem al-Araibi was jailed by Thai authorities after an unlawful red notice was issued by his home country, Bahrain.
A red notice is an international alert distributed by global law enforcement body Interpol to communicate information about crimes and criminals in member states.
Interpol notices, the most severe of which are red notices, have been criticised for their alleged misuse by countries of origin to harass migrants and refugees in their new state.
The red notice was issued by Chinese government in December 2014, at which time he had been living in Australia for 13 years. It was originally sent to the Australian Federal Police, who raided the man’s house. They investigated but made no criminal finding, and, in 2015, referred the case to the Department of Home Affairs.
After taking no action against the man for three years, the department cancelled his visa in December 2018 and put him in custody on character grounds, stemming from concerns surrounding the red notice.
The only other character question surrounding the man related to a 2010 incident in which he slapped, hit and kicked his daughter during an argument and broke her mobile phone. He pleaded guilty to assault and property damage offences and was placed on an 18-month good behaviour bond, far below the threshold in the legislation of 12 months imprisonment which would invoke the character test. There was no attempt to cancel his visa after this incident.
The man told the department the person referred to in the red notice was not him, the photograph supplied in the red notice was not him, and that the Chinese government had mis-identified him as the assailant kidnapper – an argument the department initially rejected.
The department did not answer detailed questions but, in a statement, did not concede they made an error in detaining the man on suspect charges, or in attempting to deport him. They would not confirm if they had taken into account any recommendations made by the AFP, who did not make a criminal finding against him.
The department said it “takes seriously its responsibility to protect the Australian community from the risk of harm posed by non-citizens who engage in criminal conduct or behaviour of concern”.
A ministerial delegate can revoke a resident’s visa if they don’t pass the “character test”.
If a resident has served more than 12 months in prison, or the delegate is satisfied they pose a risk to the Australian community, they are deemed to have failed.
The government has extradition powers to deport foreign nationals to face accusations of criminal conduct overseas, however, the government cancelled the man’s visa under the character test provisions instead.
The man’s lawyer, immigration barrister Dr Jason Donnelly said the events were “extraordinary,” and he had never seen the department drop a deportation proceeding in such a way before.
“To proceed under (the character test) what you’re saying is that this person poses an unacceptable risk to the Australian community … the fact that they let him stay in the Australian community for four years after the issuing of the red notice is totally inconsistent with that,” he said.
“The department’s decision spoke about this gentlemen needing to face justice in China, and when looking at the character test, this is not a relevant consideration, and is totally improper.”
Dr Donnelly also said the incident demonstrated how the department is using the character test that as a “back door” to go around regular processes under the extradition laws.
The red notice has since been removed from Interpol’s website.
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