Published 6 June 201921 June 2019 · Migration Questions of fairness: New Zealander experiences of Section 501 and the case of Shane Martin Rebecca Powell ‘Australians should take note of this case. The issues here ought to be enough to cause alarm in all Australians and get them to ask questions.’ We should heed this call by Jarrod Gilbert in Shane Martin’s new biography, A Rebel in Exile. Australians should take note, and consider the plight of long-term residents who have their visa cancelled on character grounds and who may then be deported under Section 501 of the Migration Act. What all these cases raise are fundamental questions of fairness. Shane Martin is Australia’s most high-profile deportation case because he is the father of AFL super star and Brownlow medallist, Dustin Martin; because he is a leading and lifetime member of the Rebels motorcycle club; and because he who was a long-term resident of Australia when his visa was cancelled, in 2016. His biography concentrates on his life in Australia and deportation experience and was co-written with Jarrod Gilbert, a sociologist from the University of Canterbury who provides commentary on the political and policy context surrounding bikie and criminal deportation legislative developments. The deportation made headlines in both Australia and New Zealand. It shone a spotlight on s501 deportations and the particular impact this policy has on the human rights of New Zealanders living in Australia. Section 501 of the Migration Act 1958 (s501) is the so-called ‘character test’. Since the law was amended in 2014 with the introduction of mandatory visa cancellation powers and visa cancellation on suspicion of criminal activity, there has been an increase of 1400 per cent in the number of s501 visa cancellations and deportations of convicted non-citizens from Australia. The majority are New Zealanders. Source: Department of Home Affairs Australia’s visa cancellation and deportation system against convicted non-citizens is aimed at maximizing opportunities for deportation at the expense of fairness. The system has been set up and continues to evolve around the construction of convicted non-citizens as risk to the Australian community, at the expense of their human rights. The recent amendments of s501 have expanded the grounds for visa cancellation – including against individuals who haven’t committed a crime – and narrowed opportunities to consider mitigating circumstances. As exemplified in Martin’s case, under s501 (501A and 501B), the Minister is empowered to make personal visa cancellation decisions which do not allow for an appeal process and therefore to an opportunity for consideration of mitigating circumstances. The system is weighted far too heavily towards the reduction of risk via deportation and away from important values enshrined in international human rights laws to which Australia is signatory, including rights to rehabilitation, family and social cohesion, due process and the rights of children. This is reflected in the visa cancellation decision-making guidance. This is divided into primary – focused on risk reduction and protection of the Australian community – and ‘other’ considerations, associated with mitigating factors. Primary considerations, of course, carry the greatest weight. Martin’s case mirrors the experience of over 1600 New Zealanders who have been deported from Australia since the 2014 changes to s501. Since December 2014, visas are mandatorily cancelled for convictions resulting in a sentence of at least 12 months imprisonment. Some, however, like Martin or Aaron Joe Graham and Mehaka Te Puia, have their visa cancelled and are deported on the basis of criminal suspicion or suspicion of criminal association, without being charged with any criminal offence. Regardless of how a visa cancellation decision is made, individuals will be placed on a deportation pathway without regard for their human rights or living circumstances. Whatever case may be made for criminal deportation for serious offenders and shorter-term residents, the current policy has seen others deported for minor offending and without having committed any offence at all. The majority of New Zealanders deported from Australia are long-term residents who have lived in Australia for a period of 10 years or more (1). They have strong ties and have made economic and social contributions to the Australian community. As a matter of fairness, Australia should take responsibility for the social conditions that have contributed to offending, or suspicion of offending, of long-term residents. There is limited sympathy for s501 deportees from the Australian government, media and the community, and bikies especially, as Martin has occasion to reflect: We were outraged by it all – the deportations, the laws and the over-the-top policing – but nobody else seemed to care about it. The cops and the politicians had convinced the public that we were the devil, so they were happy to see us suffer. Convicted non-citizens subjected to s501 experience differential treatment and punishment to that of citizens in addition to their prison sentence on the basis of their migration status. Deported New Zealanders who are found guilty of crimes effectively experience ‘quadruple punishments’ in the form of deportation followed – upon return to New Zealand – by a prison sentence, indefinite immigration detention and community-based controls. The current practice around the use of Section 501 compels us to consider questions of fairness. Is visa cancellation and removal of convicted non-citizens who are long-term residents of Australia fair? Is visa cancellation in the absence of a criminal offence fair? Where crimes have been committed, is it fair that Australia takes no responsibility for the conduct of long-term residents? Is a visa cancellation decision made personally by the Immigration Minister, which then restricts access to an appeal process, fair? Is it fair that New Zealanders should effectively experience a ‘quadruple punishment’ for their criminal offending, or suspicion of it? Is tearing a person away from a country they call home, their children, partner, family, business and livelihood fair? Martin says of himself: ‘People think I’m a scumbag, but I’m just a bloke who loves his kids. Bikies are people too.’ He is one of many hundreds New Zealanders who have been deported from Australia, and his experience reminds us of what is true and deserves compassion. (1) While it is difficult to find exact numbers and statistics of the number of long term New Zealander residents of Australia who have their visa cancelled under s501, analysis of all publicly available New Zealander s501 appeal cases at the Administrative Appeals Tribunal (AAT) show that since 2014, (2015–2018), the number of long term residents is at 70% or above of all New Zealander appeals cases. Note that not all AAT cases are publicly available. Rebecca Powell Rebecca Powell is the Managing-Director of the Border Crossing Observatory and the Research and Centre Manager of the Monash Migration and Inclusion Centre at Monash University. She is completing a PhD with Monash Criminology titled ‘I still call Australia home: Balancing risk and human rights in the deportation of convicted non-citizens from Australia to New Zealand’. More by Rebecca Powell Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places. If you like this piece, or support Overland’s work in general, please subscribe or donate. Related articles & Essays 2 First published in Overland Issue 228 23 February 20224 April 2022 · Refugee rights The Strengthening the Character Test Bill is bad policy passed thanks to worse politics Jana Favero It should not come as a surprise that the demonisation of migrants and refugees is again weaponised in the hope of winning votes. 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