Last month we took a look at the recent changes to Australia's Migration Act and the effects they're having on the nation's Kiwi population. It's now mandatory to deport non-citizens who've been sentenced to prison terms that amount to 12 months or more. And while this new deportation policy doesn't specifically target New Zealanders, it's having a disproportionate effect on this expat community.
A case in point is Angela Russell, who's currently been in immigration detention since April 17. The 40-year-old mother of two is facing deportation, after having resided in Australia for 37 years. And this is for a nine-month sentence, six of which were suspended, along with several prior convictions dating back as far as 2008.
These policy changes were enacted last December under the Migration Amendment (Character and General Visa Cancellation) Bill 2014. According to Australian Immigration Minister Peter Dutton, they were brought in to allow the government to cancel the visas of people involved in serious crimes. But in actuality, it's also enabling long-term residents to be sent back to their countries of birth for accumulated minor offences. And this is after languishing in detention for unspecified periods of time, waiting for their visa cancellations to be reviewed.
The detention and deportation of Kiwis is a rising concern in New Zealand. Last Wednesday, NZ prime minister John Key announced he'll be raising the issue with his Australian counterpart Malcolm Turnbull, after already giving foreign minister Julie Bishop a "pretty blunt" message about it.
VICE decided to find out what the laws are like on the other side of the ditch and how they might be affecting Aussies who've committed crimes there.
Somang You is the senior immigration solicitor at Ryken and Associates in Auckland. He finds the new Australian system hard to believe. "It's too harsh. It's not reasonable or humane," he said, declaring "It's an example of an area where the laws are just simply better here."
In New Zealand, they have a tiered deportation system which takes into account how long a resident has been in the country and the seriousness of their crime. It's outlined in Section 161 of the NZ Immigration Act 2009, that a non-citizen cannot be deported after 10 years of residency. Somang believes this is the humane approach that "recognises if you've been living here for more than 10 years, your problems are ours."
After five years, only serious criminals—who've been sentenced to a five year prison term—can be deported, which covers "pretty serious stuff" like rape or murder. Prior to five years, it's for a potential two year sentence. For less than two years, it's for a possible three month prison term. And unlike Australia, sentences don't accumulate.
The visa cancellation process in New Zealand is a lot more reasonable as well. In Australia, a non-citizen who's had their visa cancelled has the right to a review, and then it's a discretionary decision made by the minister or a delegate as to whether the visa cancellation is revoked.
But a potential deportee in New Zealand is first served with a liability notice. "Here the administrative decision comes first, on whether or not you even issue the notice," Somang said and went on to explain that the resident then goes before the independent Immigration and Protection Tribunal. "The rule here is that you get a full hearing on your humanitarian circumstances."
Since we last reported on the effect of the Australian laws, the numbers of Kiwis held in detention has continued to increase. At the end of August, 184 New Zealanders were in immigration detention, while there were only 52 deported over 2014. In terms of nationality, New Zealanders now make up the second largest group in detention, whereas in February they weren't even in the top nine.
Compared to this, Australians are faring very well under the New Zealand system. "A total of 13 Australian nationals have been deported from New Zealand in the past four financial years," Assistant general manager of Immigration New Zealand Peter Devoy told VICE.
"I'm in shock," she said. "I just feel that I'm getting stabbed in the back by Australia."
And New Zealand residents aren't being held in immigration detention prior to going before the tribunal, as they are in Australia while awaiting their review.
Devoy explained that once a non-citizen is liable for deportation they can be held for an initial 96 hours. If they can't be deported in that time, then Immigration NZ must apply for a warrant to continue the detention. Currently there are no Australians being detained on a warrant. "And the percentage of Australians in immigration custody is traditionally very low," Devoy said.
Right now there are four Australians in New Zealand prisons likely to be deported on release and another has an appeal pending with the tribunal. "There are two other Australians whose liability for deportation has been suspended for five years," Devoy said, adding this is "as long as they do not re-offend."
The tragic suicide of Junior Togatuki has further raised public ire over Australia's new deportation measures. The body of the 23-year-old was found in his solitary confinement cell at Goulburn's Supermax prison on September 12. This was a month after his seven year prison term for armed robbery and assault had ended. His last days were spent in extended incarceration, waiting on a deportation date after the Department of Immigration and Border Protection informed him he'd be sent back to New Zealand, a country he left as a 4-year-old.
For Angela Russell, who's still held at Darwin's Wickham Point detention centre, along with 10 other Kiwis, there's a glimmer of hope. As of Wednesday last week, she finally has a case manager, after waiting six months. Although there's no telling how long it will take to receive a final decision from the minister.
Russell pointed out that as she's been in Australia since the age of three, most of what she's learned in life has come from this country. When I told her what it was like for Australians residing in New Zealand, she just couldn't believe it. "I'm in shock," she said. "I just feel that I'm getting stabbed in the back by Australia."
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