Australia’s enhanced character ground deportation scheme hit a new low last week, as amongst a group of New Zealanders deported from our country was an unaccompanied 15-year-old boy, who’d lived here most of his life.
Since December 2014, the deportation of noncitizens under more stringent terms has resulted in numerous long-term residents being turfed out of this country, often over multiple minor offences.
And the majority affected have been New Zealanders, with over 2,000 having been deported.
The amendments to the Migration Act 1958 (Cth) (the Act) that intensified deportations were overseen by then immigration minister Scott Morrison. And the Abbott government didn’t even bother to notify Wellington, it simply commenced sending deportees to NZ unannounced.
Current home affairs minister Peter Dutton has overseen the deportation program since its infancy. Earlier this month he described it as “taking out the trash” to “make Australia a safer place”.
In response, NZ prime minister Jacinda Ardern reiterated her nation’s opposition to the policy.
While NSW barrister Stephen Lawrence has also condemned it. The lawyer has represented numerous individuals challenging deportation. And he points out that the minister isn’t exercising any discretion and further, the Coalition is now attempting to deport refugees back to harm.
Bad faith decision-making
“As a barrister practicing in this area, what is quite clear is that the government – particularly in respect of personal ministerial decisions – is not exercising real discretion,” said Lawrence, who maintains an office at Sydney’s Black Chambers, whilst having a national practice.
“It is highly questionable, to my mind, whether this policy is lawful, and whether it is consistent with the provisions of the Migration Act, which actually requires the exercising of real discretion,” he told Sydney Criminal Lawyers.
The barrister described the deportation of the 15-year-old New Zealander as “inhumane and appalling”, adding that whilst it’s clear the community needs to be protected from certain types of offending, the deportation program has become so extreme it’s harming international relations.
Lawrence went on to describe the way the Coalition is running the program as making a “mockery of real decision-making”, in that those involved prioritise the cancelling of visas, without any real engagement of the issues surrounding individual cases.
“We simply have an executive government not administering the Migration Act in the lawful and intended way,” he underscored.
Deporting our neighbours
Introduced into parliament by our current prime minister, the Migration Amendment (Character and General Visa Cancellation) Bill 2014 unleashed an enhanced deportation policy upon unsuspecting New Zealander communities in Australia.
The character grounds test in section 501 of the Act was amended so noncitizens sentenced to at least 12 months prison are automatically deported. This can involve multiple terms, concurrent sentences, suspended sentences, diversions to rehab and the policy applied to past sentences.
These days, many Kiwis are being deported under amended section 116 of the Act. This allows the minister to cancel a noncitizen’s visa regardless of any convictions. And it permits deportation of those who pose a risk to “the health, safety or good order of the Australian community”.
While the jury is still out on whether in drafting the laws, the Coalition understood that the policy changes were going to mainly target New Zealanders living in Australia, this disproportionate outcome has been obvious since the reforms started impacting in mid-2015.
In January this year, New Zealanders made up the largest cohort of detainees in onshore immigration detention, with 192 people awaiting deportation.
Kiwis have consistently made up the first or second largest cohort since August 2015, while prior to the changes they didn’t even rate a mention.
A policy of refoulement
“Last week, the Federal Court gave a judgement in which the barrister for the immigration minister confirmed that Australia had abandoned its long-standing policy of complying with the Refugee Convention, in not returning refugees facing the real risk of persecution,” Lawrence continued.
Having provided counsel on the case, Lawrence explained that it involved a young Iraqi man who’d come here as a teenager and is now facing deportation under section 501. And he pointed out that this case reveals the government backtracking on its international obligations.
Australia has been party to the 1951 Refugee Convention since 1954. Article 33 of the Convention outlines the principle of non-refoulement. It prohibits states from transferring refugees from their jurisdiction to one where there are substantial grounds for believing there’s risk of irreparable harm.
Coming to Australia in 2011, the Iraqi man was granted a humanitarian visa as he’s a part of a persecuted minority. Due to a conviction, his visa was cancelled in 2016. And the Administrative Appeals Tribunal has since upheld this decision, despite the risk involved in sending him back.
Federal Court Justice Michael Wigney outlined that “the minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there.”
And on 16 March, the full bench of the court determined not to revoke the man’s visa cancellation.
Rethink and reform
Lawrence points out that no other comparable western democracy is operating such a draconian deportation policy. And he posits that if nations, such as the US or the UK, implemented one, Australia would soon become aware of the devastating effect such a policy can have.
The barrister further explained that deportations from Australia and the US are wreaking havoc in Pacific Island nations, like Tonga and Samoa. It’s “incumbent upon developed countries to think carefully about how our social policies impact in poorer and more vulnerable countries”, he said.
Prior to the 2014 changes, our nation’s deportation scheme entailed mandatory visa cancellation after being sentenced to at least 24 months gaol.
In 2011, the UN condemned this policy after the country deported a 33-year-old Swedish man, who’d lived here since he was 3-weeks-old.
“These laws should be reformed to ensure that there is a real specific focus on community protection, not just this across-the-board policy that’s virtually indiscriminate,” Lawrence concluded.
“However, if there’s not to be broad reform, then there would certainly be a case for specific reform in respect to New Zealand residents, which would be justified on our special relationship with New Zealand.”
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.