Convicted killers, rapists and paedophiles cleared to stay in Australia

DOZENS of foreigners who committed despicable crimes in Australia have escaped deportation because of a tribunal's rulings. Convicted killers, rapists, paedophiles, armed robbers and serial offenders who have had their visas cancelled have won the right to remain in Australia.

In the last financial year the Administrative Appeals Tribunal overturned 24 cases - reinstating serious convicted criminals' visas that had been cancelled by the Immigration Department.

In another eight cases the tribunal told Immigration Minister Chris Bowen to reconsider the Government's finding that the offenders were not of good character and to give them visas.

One of the most shocking cases involves Maltese-born "DNCW", a convicted rapist and paedophile, who settled in Victoria after moving to the country from overseas as a child. In 2003, in his 20s, he twice attempted to commit incest with his 12-year-old step-daughter and raped his estranged wife. He was jailed for a maximum of seven years and six months. His other offences included theft, unlawful assault, breach of an intervention order, burglary, cultivating a narcotic plants, unlawful possession, and possession of housebreaking implements.

The tribunal allowed him to stay because he had no close relatives in Malta, barely spoke the language, was not eligible for social security in Malta and would "suffer considerable hardship" if deported.

As well as the broken visa cases, the AAT found six permanent residents - refused citizenship by the department because of their criminal records - were of "good character" and should become Australian citizens.

Leading criminal lawyer and Queen's Counsel Peter Faris said the situation was "scandalous". "The system is not working to protect the public and needs to be changed," he said. "People who have committed serious offences such as murder, manslaughter and rape should be excluded from appealing (decisions revoking their visas). "There must be crimes that are not acceptable and therefore there can be no debate, no appeal. People such as murderers must be automatically excluded."

But Ethnic Communities Council of Victoria chairman Sam Afra said because the criminals were in Australia, the local law that allowed them to appeal should apply. "If they are on Australian soil and the system allows them to stay, then that is the situation," he said. "If they have been punished and served their time, then they must be treated like any other Australian."

The Sunday Herald Sun understands the Government has become concerned by unelected members of the AAT reinstating the visas of criminals.

The Government said that since April serious cases had not been decided by department officials and had instead been referred directly to the Immigration Minister Chris Bowen, whose decision could not be appealed in the tribunal - it had to go to the Federal Court. Mr Bowen has cancelled eight visas and since April has notified a further eight criminals that he will cancel their visas.

Opposition immigration spokesman Scott Morrison said the minister should have intervened in the first place in such serious crimes to stop ensure that criminals involved in such serious crimes could not "play the system".

He said criminals could plead compassionate grounds to stay in Australia at the tribunal, but if the minister cancelled their visas the matter had to go to the Federal Court, which could consider only failures of legal process.

A spokesman for the Immigration Minister refused to say whether any legal action was being taken to quash the tribunal's controversial decisions. But he said the Government took "very seriously" its role to protect the Australian community from harm caused by foreigners and had in recent years cancelled or refused hundreds of visas. "It's obviously disappointing and concerning where the department's visa cancellations on character grounds are overturned," the spokesman said.

The tribunal's principal registrar, Philip Kellow, said the organisation did not comment on individual cases. "The tribunal is an independent body that reviews government decisions on the merits," he said. "It considers afresh a decision under review based on the evidence before it."

The reasons the tribunal gave in recent rulings for letting criminals stay included that the offenders had close ties to Australia and none in their homelands or that they had prospects for rehabilitation. One man was allowed to stay because he and his partner were expecting their 10th child in Australia.

The criminals include career offenders who started as juvenile thugs and graduated to violent crime, as well as wife-beaters, a tax evader, thieves, burglars and offenders who assaulted police.

Most of those allowed to stay are from New Zealand. Others come from such countries as Liberia, Bangladesh, Vietnam, Samoa, Lebanon, South Korea, Bosnia and Fiji.

The Department has a dedicated unit which monitors judicial lists and hearing and liaises with police and correctional authorities to establish if foreigners on visas have commited crimes. If a visa is cancelled, the person is deemed to be an "unlawful non-citizen" and is deported as soon as possible, depending on whether they appeal.

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Australia applies a tough test of written English to would-be immigrants

THE Federal Court has seized on the use of English language tests by immigration authorities as potentially unfair.

In a decision this month involving an Indian-born graduate from the University of New England, Justice Nye Perram said the court had noticed something puzzling in a number of cases.

There was "a disjunct between the apparent ability of [former overseas students] in skilled migration visa appeals to conduct their own cases in fluent English, on the one hand, and the operation of the [International English Language Testing System] test which deemed them not able to speak competent English at all, on the other".

Justice Perram began his judgment by recalling the 1934 attempt to deport the communist Egon Kisch by setting him a dictation test in Scottish Gaelic, a device used to apply the White Australia Policy.

"Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting," the judge said. However, he conceded that today's immigration authorities had a legitimate concern about English proficiency and said IELTS was not "a discreet tool for the implementation of concealed policies".

To make sure the legal issues were properly argued, the Indian graduate, Dushyant Manilal Parmar, was given a court-appointed barrister, Kellie Edwards.

Mr Parmar had taken more than 10 IELTS tests but could not get the score needed for a skilled migration visa. His challenge to the visa refusal failed and Justice Perram said the court could not set itself up as an arbiter of English proficiency. "It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order," he said.

In a separate challenge rejected the same day, Justice Perram expressed sympathy for the litigant, Sardar Khan Ghori, another Indian-born graduate of UNE.

Mr Ghori had taken the IELTS test five times but had not managed to get the reading and writing scores needed for his skilled graduate visa.

Justice Perram expressed a "natural sympathy" for him, especially given "the fact that his English appears to have been sufficient to obtain a Masters of Information Systems with Honours from [UNE in 2008]".

Mr Ghori had wanted time to sit another IELTS test.

In a third case last December, Justice Robert Buchanan had no choice in law but to reject an appeal by an Egyptian-born man, Moemen Rady Abdelnaeim Mohamad, who had Australian qualifications in commercial cookery, tourism, hospitality and business.

Mr Mohamad had taken 18 IELTS tests. For his visa he needed a score of at least five in each of the speaking, listening, reading and writing components.

He had attained that score in each component -- but never in the one test.

Justice Buchanan said there was a very real possibility "that the test result process yields a false result in the case of the appellant, due to his inability to cope well with an examination environment.

"The possibility of practical injustice was revealed starkly at the hearing of this appeal. "The appellant appeared for himself, without the aid of an interpreter. He had no difficulty expressing himself and reading from notes. "Were it a matter for me I would have no hesitation in pronouncing him capable of speaking, reading and understanding English to an acceptable everyday level."

In the Parmar case, Ms Edwards said the immigration rules meant that an IELTS test was just one way to prove competent English.

But Justice Perram said the rules clearly made IELTS the only proof of English.

Ms Edwards also argued that the design of the test showed that an overall score of six was enough to show competent English.

(The immigration rules required a score of at least six in each of the four elements of the test: speaking, listening, reading and writing.)

Justice Perram rejected this argument, too, saying the rules made careful use of an internationally accepted test to set up a hierarchy of proficiency in English.

And judges listening to apparently fluent litigants could not substitute their own opinion about proficiency, he said.

Ms Edwards' final argument was that by relying on the IELTS organisation, the government had put decisions about English proficiency beyond the reach of judicial scrutiny but Justice Perram said there was no problem with this arrangement.

The Department of Immigration and Citizenship pointed out that it had won the cases and no legal error was found in the decisions under challenge.

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Activist group GetUp! queried over membership

GRASSROOTS activism group GetUp! has been hit with claims it exaggerates its membership figures to appear more powerful to corporations and government.

The email and web-based lobby group, which recently ran a controversial ad attacking retailer Harvey Norman that got pulled from air, claims a membership base of 570,000-plus.

But critics say an email address and a few seconds is all that is needed to join the group, which has received more than $1.2 million from unions including the CFMEU and the Australian Services Union. Members pay no fees, but are encouraged to donate.

GetUp! earlier this month sent letters to 150 major grocery companies threatening to instruct a boycott by all 570,000 GetUp! members if the companies pursued a campaign against the carbon tax.

But political consultant Don D'Cruz, who specialises in researching activist groups, said GetUp!'s advertised membership base was misleading. "It is very difficult to tell how many fully fledged and active members the organisation has," he said. "GetUp! claims to have more than 500,000 members, but their definition of membership is fairly loose."

GetUp! director Simon Sheikh said membership criteria was intentionally "low-barrier" so anybody with a political interest could join easily.

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PUBLIC HOSPITAL ROUNDUP

Bitch public hospital doctor rejected dying man as an addict

A GRAVELY ill man, wrongly assumed to be an addict craving strong drugs, died in agony hours after being discharged from a NSW country hospital, a coroner has found.

A deputy state coroner, Hugh Dillon, said while Michael Sutherland was in Bega Hospital's emergency department he was refused the pain relief he needed for his "excruciating condition".

He found the hospital had failed to diagnose Mr Sutherland's life-threatening condition, failed to give him adequate pain relief and discharged him although he was clearly very ill.

The coroner was delivering his findings on Thursday at the inquest into the death of Mr Sutherland, who had clung to his hospital bed begging not to be sent home. Mr Sutherland had told others that the staff thought he was a "junkie" who had been "wanting drugs like an addict".

The coroner found the 52-year-old died on March 3, 2006, of faecal peritonitis, which had not been diagnosed before his discharge the previous day. He concluded that the department's Dr Dorothea Bonney made a "gross error of judgment" after forming a fixed view that "his underlying problem was substance abuse". "If, as now seems clear, Mr Sutherland's bowel was ruptured or on the point of rupturing … his pain must have been very severe indeed," he said.

Dr Bonney had refused pain relief except for a couple of tablets of paracetamol. The coroner said the doctor admitted making critical errors, including "without a proper or reasonable basis" prematurely concluding that Mr Sutherland was drug-seeking. She had given insufficient weight to evidence that suggested another diagnosis, failed to treat the constipation that he had and did not treat him adequately for his pain.

Nurses seemed to have been more sensitive to Mr Sutherland's condition, but were "rebuffed" by Dr Bonney. "Each of the nurses described Dr Bonney as intimidating and one who did not brook opposition to her decisions or opinions," the coroner said.

He said at one stage Dr Bonney reportedly told a nurse: "What is he still doing here? Get him out of my department."

Dr Bonney had already been subjected to disciplinary proceedings, no longer works in hospitals and practises as a part-time GP. "Nevertheless, in my view, her professional conduct fell far short of the expected standards," the coroner said, referring his findings to the Health Care Complaints Commission.

He also recommended consideration be given to having a CT scanner at the hospital, equipment which may have made a difference in the diagnosis.

He said a stranger, Rex Hergenham, had driven Mr Sutherland home, and another, Bernard Trentepohl, had let him stay in his own bed when pain meant they could not continue driving.

"The failures of Bega Hospital stand in stark contrast with the compassion and natural insight of the good Samaritans, and his friend Penelope Jones who became his posthumous advocate," the coroner said.

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Another negligent government hospital

ANOTHER mother has come forward to tell of her nightmare ordeal at a Perth hospital during two miscarriages, after a young Forrestfield couple yesterday revealed their heartbreak on learning their dead baby had been thrown out in the garbage.

Stratton mother-of-one Tamara Wright went to Swan Districts Hospital last year after having pains in her abdomen while 17 weeks pregnant, but a junior doctor told her the baby was fine and refused her requests for further tests and an ultrasound.

Three days later she miscarried the fetus and was told it had died at 13 weeks.

However, an autopsy later found it had died between 17 and 18 weeks, leaving Mrs Wright wondering if her baby could have been saved when she initially sought help at the hospital.

“I don’t know if he could have been saved or not, but for my sake, to keep my head straight, I’ve been telling myself it couldn’t,” Mrs Wright said. “But there may be a chance that something could have been done when I first went in.”

The autopsy was unable to show any problems with the baby, but because the hospital had thrown out the placenta instead of sending it for testing, the reason why she miscarried remains unknown.

Mrs Wright became pregnant again this year and went to the hospital again after having severe pains, but staff again refused to run tests or do an ultrasound.

“They just told me ‘no, go home and the baby will pass naturally’,” Mrs Wright said. “They were just saying: ‘if it’s going to happen, it’s going to happen’.

“I knew something was wrong. It’s just a mother instinct, so the next day I went straight to Joondalup Hospital and they were more than helpful.” Tests at Joondalup Hospital revealed the baby had died.

Mrs Wright said after the first incident, the hospital told her they would use her case to ensure that no other parents would go through the same ordeal, but it was clear after her second miscarriage nothing had changed.

A Swan hospital spokeswoman said: “We express our condolences to the family involved for their tragic loss and apologise for any distress caused by the events that followed early last year."

"Shortly after this occurred, senior hospital staff met with the family to discuss the concerns they had regarding the care they received and to apologise.

“Should the couple have outstanding concerns, we welcome the chance to meet with them again to ensure their concerns are resolved. "We are unable to disclose any further information about the specifics in this case due to patient confidentiality."

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An unending bureaucratic debacle

Queensland Health payroll will cost up to $220 million to fix, acting director-general admits

QUEENSLAND Health's disastrous payroll system faces yet another budget blowout, with $10 million more likely to be spent after a weekend peace deal that was brokered with disgruntled workers. The cost - revealed during estimate hearings in State Parliament yesterday - adds to $209 million already allocated to fix the troubled system.

It comes after the department botched attempts to retrieve $62 million in overpaid wages, forcing Premier Anna Bligh to step in on Sunday and order a freeze on the recovery. Ms Bligh also announced other measures, including pay rises for overworked payroll staff, but it was only revealed yesterday the move would cost $10 million.

During a long afternoon of estimates debate, Health Minister Geoff Wilson dodged calls for a parliamentary inquiry into the debacle. He insisted repeated scrutiny of the troubled system by the Auditor-General and an accounting firm hired by Queensland Health went far enough because their recommendations for improvements were acted upon.

But Opposition health spokesman Mark McArdle repeatedly called for an inquiry and public hearing into the recovery of wage overpayments made to 38,000 employees. Mr McArdle labelled the system's rollout last March an "unmitigated disaster" and said that later attempts to recover overpaid wages had proven "equally disastrous".

He tabled as an example a bill sent last month to Hendra doctor Dominique Hannah for almost $26,000 allegedly overpaid last March, which she believed was incorrect. "No checking was done before those letters were forwarded on. You simply accepted what was on the system and did nothing to ensure it was right," Mr McArdle said.

Independent MP Liz Cunningham said it was unfair to expect workers to prove their overpayments were incorrect based on "flawed" payslips provided by Queensland Health.

Acting director-general Dr Tony O'Connell defended the process, saying bills were "as accurate as we believed our system could generate" and staff were given options to dispute the figures.

"We wouldn't want them to depend on just the payslip," he said. "We've given them case managers if they require to talk them through the various payslips and statements of pay and hours worked."

Dr O'Connell was also grilled over 88 health workers referred to police amid claims they fraudulently accessed hardship payments at the height of the payroll furore. While officers had been unable to find three workers, another 18 had been charged or convicted, he said. But half were yet to be contacted by police for interviews. He said 10 had had their files referred back to Health for verification of their versions.

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