Could the Government Start Deporting Teenagers for Being Part of Apex?

On Thursday, reports emerged that Victoria Police has been referring  some overseas-born juvenile offenders to Border Force for deportation. Victoria Police confirmed to VICE that "a number of offenders, including some allegedly associated with the 'Apex Gang'" had been referred to the Department of Immigration and Border Protection. Referring adult visa holders for deportation isn't new. But the referral of children under 18 is unprecedented, according to legal experts VICE spoke with for this story.

They also stressed this is an issue because Minister for Immigration, Peter Dutton, has the final say whether someone's visa is cancelled. This isn't made by an expert panel, but by the minister, on his own personal assessment of "character."

Apex first caught national attention back in July 2015, when some of its members were allegedly involved in a brawl in Melbourne's CBD during the city's Moomba Festival. The group, which is largely based in Melbourne's south-east around Dandenong, Springvale, and Cranbourne, has garnered an increasingly tough-on-crime response ever since. It's reported that since 2015, when the Migration Act was expanded to give the government broader powers to deport visa holders, four men with alleged links to Apex have had their visas cancelled—one has already been deported back to New Zealand.

"This is an unwelcome, though unsurprising, continuation of the current government's trend in ensuring the Migration Act is applied in a punitive fashion," immigration law specialist Sanmati Verma told VICE. Legal Aid Victoria's executive director of criminal law, Helen Fatouros, also shared concerns, telling VICE, "Visa cancellation should not be about punishment. Under our legal system, the courts impose punishment for criminal offending, not politicians."

Speaking on Melbourne radio Thursday morning, immigration minister Peter Dutton explained it's "very difficult to deport children… we don't deport children. We try and work with families through difficulties." However, in the same interview, the minister said there's a committee looking into Section 501 of the Migration Act—whether it might need to be changed to allow the deportation of minors.

"This is one of the things that Jason Wood's committee's having a look at at the moment," Minister Dutton said. "Whether, for example, the bar could be lowered from 18 to 17 or 16 [years old], or whatever the case might be." Jason Wood is the federal MP for La Trobe, an electorate that borders Apex's alleged territory. After the Moomba brawl, MP Wood addressed federal parliament imploring  that "it's time to get tough on the Apex gang."

The idea of further expanding Section 501 is raising some eyebrows in the legal community. Better known as the "Character Requirement," the section already gives the Minister for Immigration broad powers to refuse or revoke anyone's visa. For example, if you "had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct" your visa can be cancelled.

At its most extreme, the Character Requirement means the government could cancel someone's visa if they have been "associated" with someone "reasonably suspected" of being involved in criminal activity. Given the nature of Apex—it's been been widely reported the group "has no clubhouse, no colours and no real structure"—questions around how Border Force defines "an association" or what's meant by "reasonably suspects of being involved in criminal conduct" become vital.

It's also important to note that the decision on whether someone passes or fails the Character Requirement doesn't fall to an expert panel or the like, it's made by one person—the Minister for Immigration, Peter Dutton, or a delegate of his choosing. These are powers the Minister doesn't appear reticent to exercise. "Ministers before [Peter Dutton's predecessor] Scott Morrison didn't make as many 'Character' decisions personally," Sanmati Verma explained to VICE. "The current government has clearly wanted to make a punitive point with the use of those powers."

Immigration specialists, with concerns about Section 501, will point to the case of Dr Mohamed Haneef. Back in 2007, the Indian-born doctor was working at a Gold Coast hospital when then-immigration minister Kevin Andrews cancelled his Australian visa. The reasoning was that Dr Haneef's second cousins, once removed, were suspected to be involved in a terrorist attack on Glasgow Airport. The decision to cancel Haneef's visa was made pre-conviction—and he was never found guilty of anything in a court of law.

In fact, a few weeks after Haneef was detained at Brisbane Airport, the Department of Public Prosecutions dropped its case against him. The next month, Justice Spender of the Supreme Court overturned Haneef's visa cancellation, saying Minister Andrews had made a mistake. By this time though, the 27-year-old doctor had already left Australia, and returned to India.

Still the government tried to appeal the decision, arguing that "the 'association' could be an innocent one, such as being related." But the court sided with Dr Haneef, whose legal team argued, "this was too wide a test and would catch innocent people… a victim of domestic violence would fail the character test, because they had an association (a relationship in this example) with the perpetrator of the violence against them."

Commenting on the Haneef case at the time, Law Council of Australia President Tim Bugg said, "Australians should be concerned that Minister Andrews is so determined to pursue the power to expel a person from Australia, on the basis that they have, without more, merely associated with a suspected criminal. This is a character test that is not about character at all."

All of this happened before the Migration Act was broadened in 2015.

For Sanmati Verma, the government's increasing reliance on the Character Requirement needs closer examination. "This is the most severe [way to cancel someone's visa] and creates potentially the most lifelong consequences," she said. "If your visa is cancelled because you've failed the 'Character Test,' you end up in detention. If the Minister makes the decision, you have no right of appeal. And once you leave the country, you're permanently barred from coming back."

While the group has become more diverse as it's grown, there are still many suspected Apex members who were born in South Sudan. Trace the most extreme trajectory of this development, and you do end up in a situation where Australia is deporting teenagers back to a country that's been wracked by civil war since 2013. A place they may not have lived in since they were babies.

"It's alarming, from a rule of law perspective, that police could be empowered to pass on information to the government without charge, without conviction, and on that basis be able to instigate a decision-making process within the Department [of Immigration]," Sanmati Verma said.

"It is not part of Australian law that visas are refused or cancelled on the basis of a person's nationality or membership of a particular cultural group," Legal Aid's Helen Fatouros said. "The Minister has power to refuse and cancel visas, and the law is clear that the focus of the power is the protection of the Australian community—not punishment or exclusion of particular groups."

Responding to questions from VICE about the referral of Apex-linked juvenile offenders to Border Force, Victorian Police Minister Lisa Neville said, "We fully support Victoria Police working with federal authorities to make use of these laws… This sends a strong message that you will suffer the consequences of this type of offending. Victorian families should not have to deal with this sort of harm and fear in our community."

VICE reached out to MP Jason Wood for clarification about the scope of his committee examining Section 501; however, we did not receive a response.

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