The Australian government used a fraud conviction to attempt to deport an otherwise “model” New Zealand citizen who has lived in Australia for 40 years, with three Australian children and an Australian wife, and has not returned to his birth country since he was 17.
The Morrison government is using the final days of parliament to attempt to harden its “character test” policy, which is used to cancel the visas of non-citizens, primarily New Zealand citizens, who are sentenced to more than 12 months’ imprisonment.
The policy has been a huge point of contention between the two nations, souring relations, and prompting direct rebukes to prime minister Scott Morrison from his New Zealand counterpart Jacinda Ardern.
Last week, the government lost a case in the Administrative Appeals Tribunal to deport a 47-year-old New Zealand man, who was convicted in 2021 of defrauding his own small business of more than $200,000, but had no other criminal history and was a “very low” risk of reoffending.
The man was “otherwise exemplary in his behaviour” and a “loving and caring father and husband who has contributed significantly to the community”, tribunal deputy president Stephen Boyle said.
The man’s lawyers argued before the tribunal that immigration minister Alex Hawke’s refusal to revoke the automatic cancellation in November threatened to separate the man from at least one of his children and take his wife and immediate family away from their school, relatives and friends.
His lawyers appealed to the Administrative Appeals Tribunal, arguing the decision was against the best interests of his children, that their client and his family were heavily established in Australia, posed no ongoing risk to the community, and the man had not committed offences of violence, drugs or abuse.
“[He] is not a violent criminal,” they argued. “[He] was not involved in drugs and has no other criminal record. He is not a member of a group involved with criminal conduct nor was he involved in human trafficking or vilification of any sector of the Australian community.”
“[He] does have an Australian wife, three Australian children and an extended network of family and friends which has grown from his many productive years as a respected citizen and taxpayer in his community. He is presently paying for his error in prison and there is no suggestion that he will ever repeat his mistakes when his sentence is finished.”
The AAT decided in the man’s favour, finding that the considerations in favour of allowing him to remain in Australia outweighed those against. It revoked the cancellation and allowed him to stay in the country.
Australia’s policy of deporting non-citizens has been the source of longstanding trans-Tasman tensions.
The number of visa cancellations under the policy has skyrocketed in less than a decade. Almost half of the 946 visas cancelled under the policy last financial year were New Zealand citizens.
Those numbers will increase further if the government succeeds in its current attempt to harden the law. The Morrison government is currently attempting to push through the Migration Amendment (Strengthening the Character Test) bill 2021, which would cause more people to be deemed to have automatically failed the character test. The Law Council of Australia has criticised the changes as “disproportionate and unnecessary”.
In 2020, Ardern publicly rebuked Morrison over the deportation policy, declaring that New Zealand would “own our people [and] we ask that Australia stops exporting theirs”.
More recently, prominent Māori leader Matthew Tukaki, the executive chairman of the National Māori Authority, said Australia was attempting to turn New Zealand into a “dumping ground” for criminals.
Tukaki suggested the Ardern government should “turn the planes around”.
