“Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws,” said the federal Liberal MP.
While this quote might sound like the words of home affairs minister Peter Dutton, they’re actually the work of Abbott government immigration minister Scott Morrison as he was introducing the Migration Amendment (Character and General Visa Cancellation) Bill 2014 into parliament.
As our current PM delivered his second reading speech on the bill on 24 September 2014, he outlined amendments to the 1990s enacted character visa cancellation regime that on paper might have appeared mild, but in application have seen thousands of mainly long-term residents deported.
By that stage, Mr Morrison was old hat at delivering draconian migration policies. On 23 September the year prior, he’d launched Operation Sovereign Borders, which led to our nation being distinctly known for the drawn out offshore torture it can mete out upon people fleeing persecution.
But what makes the enhanced character grounds deportation regime distinctly different from other rights-violating migration policies is the largest cohort of people that have been turfed out of our country have been our neighbours from over the ditch, New Zealanders.
Deported in droves
Last November, there were 187 New Zealanders locked up in Australian immigration detention, making them the second biggest nationality represented in our nation’s onshore immigration facilities.
Back when Morrison oversaw the enactment of the laws in December 2014, Kiwis weren’t listed as one of the top nine nationalities in detention. But by December 2015, they were the second largest group. And by December 2016, New Zealanders slated for deportation were number one.
And while the former immigration minister suggested the new regime was needed “to deal with higher volumes of temporary visa holders”, often it’s long-term residents being deported over minor offences to a country they have no real connection to, after living here most of their lives.
“We’ve had 2,300 people deported here,” said Filipa Payne over the phone from New Zealand. “For a small country, that’s just about one person for every family.”
Payne is the cofounder Route 501, which is a support and advocacy network for people in Australian immigration detention. The Route 501 Facebook page details information relevant to people being detained under these laws, as well as testimonies from those currently on Christmas Island.
Character ground detainees are known as 501ers after the section of the Migration Act 1958 (Cth), which contains the laws they’re being deported under.
“I like to educate others about the people involved in the deportation system not all being paedophiles and gang members as the Australian government likes to say,” Payne told Sydney Criminal Lawyers. “They’re actually the minority, not the majority.”
Morrison’s bill altered section 501 of the Migration Act, so a noncitizen is deported if they’ve been sentenced to 12 months prison or more. This can be any number of sentences. It includes sentences served concurrently, as well as sentence involving drug rehabilitation or a mental health program.
This is why, despite minister Dutton asserting 501ers are all “paedophiles, bikies and drug dealers”, most of the people thrown out as if they’re none of our collective responsibility are being deported over multiple minor offences.
But there are a number of other reasons a person can be booted out of the country as well. These include being acquitted of a crime due to insanity or being unfit to stand trial.
And get this, the minister can turf someone out if they “reasonably suspect” they have an association with a group, organisation or person involved in criminal conduct.
There’s also subsection 501(3), which permits the minister to cancel a visa if they reasonably suspect that a person does not pass the character test and if they’re satisfied that the cancellation is in “the national interest”.
“We’ve had people going through detention centres that have never committed a crime or they’ve been judged on their character, as well as people who haven’t been convicted by a court of law,” Payne made clear. And she added that many people these days are deported under section 116.
Section 116 of the Migration Act contains a long list of reasons for visa cancellation. The provision that gives the minister the most leeway to cancel one is that if an individual’s presence “is or may be, or would or might be, a risk to the health, safety or good order of the Australian community”.
So, when NZ prime minister Jacinta Ardern raised concerns about the fairness of the deportation program with Morrison last February, she was speaking to the right guy. The much-respected world leader told our PM that our nation is deporting our own people and our own problems.
And this is a key issue: if a 40-year-old New Zealand-born mother has been living here for 37 years, is it valid for the Coalition to deport them to NZ? At what point does that person, their behaviour and their offending become a product of the Australian community they were brought up in?
Right now, 165 of the 252 immigration detainees Dutton recently transferred to the immigration detention facility on Christmas Island are 501ers. The government can’t deport them because the borders are closed for the pandemic, so they’ve sent them over to the isolated location instead.
Over recent weeks, unrest has broken out at the facility twice. Tensions had been on high as detainees were being locked inside compounds for 22 hours a day and they had also been denied medication for days on end. The riots broke out after a request to hold a peaceful demonstration was denied.
However, Payne adds that since the 10 January, the day following the second demonstration, “the men have been locked in their compounds 24 hours a day”.
In a 7 January Route 501 post filmed within the Christmas Island facility, New Zealand-born Steven Warner explains that he’s been in immigration detention for 10 months now, after having his visa cancelled over a drink driving conviction, which he served 9 months in prison for.
Warner has been in Australia since 2007, and he has three kids over here.
“Gaol was even better than this. In gaol, at least you know the date you are going to go home. In this detention centre, we don’t know nothing,” he explains. “We broke the law. We did the crime. We’ve done the time. So, this is extra time now. So, Christmas Island is torture.”
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.