The Commonwealth Government’s power to detain and deport refugees who commit crimes in Australia is under a cloud after a landmark federal court ruling.

The federal government has been increasing the use of a strict character test to cancel or deny visas to thousands of non-citizens, including refugees since the criteria was strengthened in 2014.

But in a judgment handed down on Christmas Eve as part of the case of a Tamil refugee held in detention for more than 10 years, Justice Steven Rares said the controversial character provisions in section 501 of the Migration Act do not apply to refugees.

Human Rights lawyer Alison Battisson, who represented the Tamil refugee, said the finding was “incredibly significant”.

“We are quite excited, it could impact thousands of people,” said Ms Battisson, who is Director of pro-bono law from Human Rights for All.

Under Section 501 of the Migration Act, a visa holder who is sentenced to at least 12 months in jail automatically fails and faces deportation.

The immigration minister also has discretionary powers to kick out any non-citizen he deems poses a threat to other Australians.

“There is an emerging trend of asylum seekers who have been in the community for years or decades, such as Iraqis who sought asylum when Saddam Hussein was in power who have then run up against the law in a minor, or sometimes major way, but normally a minor way, and 20 years later find themselves with their protection visa cancelled,” Ms Battisson said.

Due to Australia’s obligations under the international refugee convention, that has meant people who cannot be returned to their home country have been locked up in

Justice Rares said the Section 501 character test shouldn’t apply because asylum seekers’ character is already assessed in the process to determine if they are entitled to a protection visa.

Under that test, only those guilty of much more serious crimes, such as mass murder, would fail.    

Ms Battisson has written to the Home Affairs Department requesting a review for 14 other clients in detention who were denied a visa on character grounds.

One of her clients arrived as a 16-year-old boy with mental health issues and developmental delays.

“He acts out and that’s been used against him. He’s now 22 and still in detention,” she said.

In August, the federal government’s revealed the policy had led to 4,700 foreign criminals having their visa cancelled in the past six years – seven times the amount Labor kicked out in the previous six years.

In the 12 months to June 2019 alone, 943 visas were cancelled on character grounds.

As of October 2019, nearly 600 people were being held in immigration detention facilities after failing the s501 character test, but it’s unknown how many of those are refugees.