The Albanese government has announced coming changes to the nation’s immigration deportation scheme that were first spruiked last July.
The current laws have seen thousands of noncitizens expelled since 2015, with the largest cohort having been New Zealand-born people.
The government, however, hasn’t amended the Migration Act 1958 (Cth) to facilitate this, rather immigration minister Andrew Giles issued a 31 January direction, which establishes points that must be taken into account in relation to a noncitizen being deported.
Taking effect on 3 March, Direction 99 outlines additional considerations regarding visa cancellation on failing the character test contained in section 501 of the Migration Act, as well as whether a mandatory visa cancellation under section 501CA should be revoked.
These considerations are as follows: the need to protect the Australian community from criminal conduct, whether the questionable behaviour is domestic violence, the strength, nature and duration of ties in Australia, the best interests of Australian children and community expectations.
Indeed, since the late 2014 Abbott government 501 character test reforms were made, the regime has come under heavy criticism for deporting numerous long-term residents, often over minor crimes. And while the coming changes are welcomed, advocates warn they’re hardly enough.
Too little, too late
“The amendments are giving more scope for acknowledging people who can live in Australia permanently, not just permanent residents or citizens,” Route 501 founder Filipa Payne told Sydney Criminal Lawyers.
“This will enable more support for NZ citizens living in Australia, and probably UK citizens too,” the NZ-based deportee support advocate continued. “This may mean the ability to win on appeal could increase slightly.”
The current scheme has seen more than 7,000 deportations over seven years, which have occurred after then immigration minister Scott Morrison tightened the section 501 character test, so that noncitizens are automatically thrown out after being sentenced to at least 12 months prison.
And the accumulative and retrospective nature of this law has meant that close to 3,000 New Zealand-born residents have been sent across the ditch, devastating local Kiwi communities, eroding trans-Tasman relationships and impacting NZ society with an increase crime rates.
“Whilst it is great to see the Australian government make a small amendment,” Payne added, “it is in no way far enough.”
Payne pointed out in mid-2021 that as the initial mass of 501 deportees began subsiding, authorities turned to section 116 of the Migration Act to continue the process, as it permits expelling individuals who merely pose a risk to “health, safety or good order”, regardless of any convictions.
However, Giles’ new direction does nothing to counter the triggers for deportation contained in section 116.
Another heavily criticised aspect of the regime that remains is mandatory detention. Payne questions why those who’ve long lived in Australia, and have served any required time in prison, need to be locked up in facilities for months on end while awaiting case determinations.
“Why is detention still mandatory? The fact that people on average stay in an Australian immigration detention centre for 780 days isn’t addressed in the amendments,” said Payne, who’s been to the immigration detention facility on Christmas Island and witnessed its harsh conditions.
“For over seven years now, under section 501, the Australian government has held people against their will in detention centres, tortured them, beaten them and rotated them continuously within them.”
According to Home Affairs, last November, NZ-born people continued to be the largest cohort in onshore immigration detention, as they have been since 2016, whilst 791 onshore immigration detainees, or 63 percent of them, were 501ers, as those slated for deportation are often referred to.
“The impact the amendments have had on people already removed has been bittersweet,” said Payne referring to the hundreds of former Australian residents, who’ve already been deported to New Zealand.
“I have been contacted by numerous people wanting to know if this means that they may have an opportunity to return to be with their families in some capacity in Australia even for a short duration of time.”
The Route 501 founder further underscored that in terms of separating parents from their Australian-born children, the minister, in his direction, has not ruled out continuing this “abhorrent, abusive and shameful behaviour” moving into the future.
“The immense pain and anguish people are experiencing from being separated from their children, mothers, fathers and partners continues every day and Australia does not acknowledge this in any capacity,” Payne said in conclusion.
“The deportees in New Zealand that I have spoken to are happy that there has been some movement and know that we will all stand together to continue our fight.”