By Sonia Hickey and Ugur Nedim
Fifty-two year old Maryanne Caric has not left Australia since she arrived as a two-year old from the former Republic of Yugoslavia – not even for a holiday.
She does not speak her native language of Croatian, only English, and for obvious reasons she speaks with an Aussie accent.
She has no family or other connections in Croatia, is not familiar with the culture and considers herself to be a true blue Aussie. Apart from her visa status, Maryanne is, for all intents and purposes, an Australian and has lived as one her entire life.
Despite this, Maryanne was handed deportation papers earlier this month because she never officially became an Australian citizen, and did not pass the revised “character test” which came into effect three years ago.
Under the new test, the Immigration Minister must cancel the visas of non-citizens if they have a “substantial criminal record”.
The changes are embodied in section 501 of the Migration Act 1958, which says that a person has a substantial criminal record if they are:
- Sentenced to death (which would obviously have had to occur in another country);
- Sentenced to life imprisonment;
- Sentenced to a term of imprisonment of 12 months or more;
- Sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
- Acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
- Found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and, as a result, the person has been detained in a facility or institution.
Maryanne has had a troubled life. She left home at just 14 years of age, fleeing a violent alcoholic father. Her older sister had already left, after marrying at 16.
Maryanne became a habitual drug user and slipped into the drug scene, where she started selling drugs to support her habit. Without support systems, the young woman found it difficult to break the cycle of drug using and offending to support her habit.
She had several run-ins with the law, eventually leading to her imprisonment for drug possession and supply.
The last thing on Maryanne’s mind was her citizenship status. She spent several stints in prison for drug offences, falling back into drug use and crime each time she was released.
However, she ultimately matured, had children, and those kids had children of their own. She is currently dependent on methadone.
Despite Maryanne’s decades in Australia and her harsh upbringing, the lack of discretion in the “substantial criminal record” test means the Immigration Minister must cancel her visa.
A similar plight has befallen hundreds of people from New Zealand, our former ANZAC comrades.
Deportation of non-citizens is a controversial topic, especially when it comes to those who – like Maryanne – have been in Australia for long periods of time and have no connections elsewhere.
Some believe it is just and necessary to deport non-citizens who commit serious offences, regardless of personal factors. After all, Australia has provided them with a chance to prove themselves to be law-abiding individuals, and serious offending may be seen as a breach of that opportunity.
Others feel discretionary factors should come into play, and that rigid laws can lead to injustice in cases where people should be considered Australian for all intents and purposes, having been here for long periods of time and without connection to their native lands.
Immigration Department’s response
Assistant Immigration Minister Alex Hawke says that despite the consequences for Maryanne, the decision to deport her must stand.
“I accept that having been away from her country of origin for close to 50 years and having no personal support network there, together with her health and substance abuse issues, that it would be extremely difficult for her to make the necessary adjustments to life there”, Mr Hawke remarked.
Access to justice
It should be noted that Maryanne was officially warned in 2007, and again in 2010, that further criminal activity could result in deportation.
Experts working in the area say these warnings are issued to people who have little ability to navigate the system. They are often people with mental health or substance abuse issues, who are not certain where to go for legal advice. In many cases, they can’t afford legal assistance, and often don’t fully appreciate the seriousness of the warning.
Maryanne says she thought about applying for citizenship when given the warnings, but figured there was little chance to become a citizen in light of her criminal record.
She is concerned that the methadone she is now dependent on won’t be available in Croatia and that she will be living on the streets.