Federal immigration law allows the Commonwealth to deport offenders who are not Australian citizens, provided they have been in the country for less than 10 years and have received a prison sentence of more than one year.

The law was used to cancel the visas of 244 migrant offenders in 2023-24, including 50 for drug offences, 27 for child sex offenses and 13 for rape and indecent assault.

But magistrates in Victoria have been given instructions on how to ensure criminals do not face deportation when they sentence them for their crimes.

The instruction was part of court-led professional development, with the Herald Sun revealing magistrates were trained on avoiding jail sentences for drug-trafficking offences.

The training also included a hypothetical example of a Vietnamese student who had just arrived in Australia sexually assaulting an eight-year-old child on multiple occasions.

Magistrates were advised to sentence the accused to 11 months and 15 days in prison so that he would not be deported at the end of his sentence.

Federal Immigration Minister Dan Tehan described the reports as “disturbing”, telling SkyNews.com.au Australians deserved to know whether the Labor governments in Canberra and Melbourne supported the training.

“The federal and Victorian Labor governments must explain whether they support adapting court sentences to allow criminals to avoid deportation,” Mr Tehan said.

“Australians expect anyone found guilty of a crime to be convicted based on the evidence before the courts so as not to circumvent federal immigration laws.”

Victorian Premier Jacinta Allan said on Monday she had raised concerns about the training of Attorney-General Jaclyn Symes, but deferred and said the courts were independent.

“I have some concerns about today’s report and I have spoken to the Attorney General and she will speak to the courts about this matter,” Premier Allan said during a press conference.

“I will let those conversations be between the attorney and the courts, recognizing that the courts drive that course.

“They’re an independent arm in this state (and) I’m not going to make a public comment, other than to say that this report has raised some concerns, and counsel will take that up with the courts.”

Shadow Attorney General Michael O’Brien described the Prime Minister’s response as “not good enough”.

“Premier Jacinta Allan has been writing the laws of this state for 10 years. She and her government wrote the Sentencing Act that allows these loopholes to be created,” Mr O’Brien said.

“It’s time for Prime Minister Allen to stop talking a big game and start acting, and the first thing he should do is close this loophole.”

Mr O’Brien said offenders should not get “sentence reductions because magistrates want to keep them in Australia”.

“If Victorian magistrates are deliberately targeting drug dealers and sex offenders to save them from deportation, it shows you that the justice system in this state is fundamentally broken when people commit serious crimes like drug dealing and sexual assault should feel the full force. of the law,” he said.

“A Liberal government will look at whether deportation should be considered as a sentencing factor because clearly some magistrates appear to be using – and no doubt abusing this proposal – to keep heinous criminals in Australia , when in fact the law provides for them to be deported”.

A court spokesman confirmed to the Herald Sun that there was a professional development day for magistrates’ court judicial officers.

“The focus of the day was sentencing. The law treats deportation as a ‘relevant circumstance’ for sentencing purposes,” the spokesman said.

The spokesman said it was common for different scenarios to be used in education sessions to highlight relevant legislation and discuss the correct application of the principles of the law.

“The scenarios are often drawn from decided cases and may be modified to focus attention on a particular aspect of the law, for example section 501(3A) of the Migration Act 1958 (Cth),” the spokesman said.

“Each judicial officer is an independent decision-maker in relation to every matter before him and acts on that basis.”

According to the Judicial College of Victoria, Victorian courts can consider deportation as a relevant factor in sentencing if it will make the burden of imprisonment more onerous or result in the offender losing the opportunity to settle permanently in Australia.

But courts are not meant to consider deportation as a mitigating factor unless it will actually be a hardship on the offender, and it can only be considered when there is specific evidence or a concession from the prosecution.

Government figures show that the number of non-citizen offenders who have had their visas canceled has fallen by 75 per cent over the past five years, falling from 1,015 in 2019-20 to 244 in 2023-24.