Balancing risk and human rights in the deportation of convicted non-citizens from Australia to New Zealand

Since amendments were made to Section 501 of the Migration Act – visa cancellation and refusal on character grounds – in December 2014, New Zealanders are the largest nationality group of persons who have their visa cancelled under s501, which then renders them unlawful non-citizens. As a result, they are the largest nationality group in Australia’s immigration detention network and the largest nationality group to be deported from Australia under s501. A number of these are permanent and long term residents who had lived in Australia since childhood or a period of 10 years or more. This research seeks to present an understanding of the Australian deportation experience for those convicted New Zealanders who have their visa cancelled under s501.

Very little is known about visa cancellation and deportation policy and practice against convicted New Zealanders from Australia and the human impact this experience has on deportees and their families. While this aspect is at the heart of this research, administrative decision making surrounding visa cancellation and deportation against convicted non-citizens will be explored within a crimmigration, risk society and pre-crime framework. In s501 decision making, convicted non-citizens are often constructed as a risk to the Australian community as a means to justify visa cancellation and removal decisions which then has an impact on the individual circumstances and human rights of New Zealander long term residents of Australia.

This research project builds upon the Australian Deportation Project that examines contemporary deportations from Australia. The overarching objective of this research is to examine the rise in crimmigration responses towards convicted non-citizens in the evolution of visa cancellation and deportation policy and practice, and the intersection of risk and human rights with regards to the visa cancellation process, its application and impact on the group most affected by this policy and practice: New Zealand citizens.

Research questions

Overall research question

How has Australian criminal deportation policy and practice changed over time and what have been the impacts on New Zealander criminal deportees and their families?

Detailed research questions

  1. To what extent does the evolution of Australia’s criminal deportation policy from 1958-2018 incorporate characteristics of crimmigration and human rights protections for convicted non-citizens?
  2. In what ways are considerations of risk and human rights presented in policy evident in s501 visa cancellation Administrative Appeal Tribunal (AAT) review outcomes for convicted New Zealanders?
  3. How have convicted New Zealanders and family Members experienced s501 visa cancellation and deportation since policy amendments were made in December 2014?

Project team

Rebecca Powell Rebecca.powell@monash.edu

Leanne Weber Leanne.weber@monash.edu

Marie Segrave marie.segrave@monash.edu

Publications

Weber, L. and Powell R. (2020) 'Crime, pre-crime and sub-crime: Deportation of 'risky non-citizens' as 'enemy crimmigration'' in J. Pratt and J, Anderson (eds.) Criminal Justice, Risk and the Revolt against Uncertainty, Palgrave McMillan.

Powell, R. (2019) 'Questions of fairness: New Zealander experiences of s501 and the case of Shane Martin' Overland, 6 June 2019. Available online.

Martin, D. & Powell, R. 2018, 'Proposed change to Migration Act opens the way to deporting children' Right Now, 23 November 2018.

Powell, R. & Martin, D. 2018, 'Border Crossing Observatory submission to the Legal and Constitutional Affairs Legislation Committee on the Migration Amendment (Strengthening the Character Test) Bill 2018', 3 December 2018.

Powell, R. & Weber, L. 2018, 'Border Crossing Observatory submission to the Joint Standing Committee on Migration review processes associated with visa cancellations made on criminal grounds' 27 April 2017.

Powell, R. & Segrave, M. 2018, ‘In the absence of sympathy: Serious criminal offenders and the impact of border control measures’, in A Fili, S Jahnsen and R Powell (eds.) Criminal Justice Research in an Era of Mass Mobility, Palgrave: London.

Weber, L. & Powell, R. 2017, ‘Ripples Across the Pacific: Cycles of Risk and Exclusion Following Criminal Deportation to Samoa’ in S. Khsoravi, After Deportation: Ethnographic perspectives, Palgrave Macmillan.