Introduction
Section 501 of the Migration Act lists various reasons someone may not pass the character test.[1] Non-citizens living in Australia on a visa may find their visa cancelled and must leave Australia if they do not pass the character test. Under the previous Liberal government, the approach had become increasingly stringent. As a result, “approximately 3,000 New Zealand nationals have been deported” because even minor offences can significantly impact the lives of visa holders.
The over-representation of New Zealanders in visa cancellation and deportation is complex and multifaceted. This issue is at the intersection of criminal and immigration law, which “has captured the attention of immigration and criminal law scholars alike.” [2] This article tries to unearth the roots of why there are so many new Zealander in Australia facing visa cancellation and deportation recently.
Environmental scan
Historical factor
The control and expulsion of ‘non-citizens’ from Australia are not new. The stricter border policies may “constitute evidence of the continuing infamy of the Australian state and nation as entities characterised by a xenophobia with roots in the White Australia Policy and a determination to protect the privileges of a wealthy member of the Western alliance.”[3]
Political factor
“States use crimmigration process to reinforce cultural, political and moral boundaries.”[4] By cracking down on immigrants seen as breaking the law, states demonstrate their commitment to upholding social norms. The harsh Visa cancellation and deportation policy can demonstrate the will and power of the state to enforce its laws and protect its citizens.
This policy can also create a sense of “otherness” which helps to reinforce political and cultural boundaries. “Monitoring and expelling non-citizens functions to bolster state power and to remind citizens of the state’s role in their protection”[5] create a sense of unity among the majority population.
“Post-modern state is simultaneously jealous of its own powers and privileges, and all too ready to subject outsiders to the full weight of an exclusionary law.”[6]This tension between the state’s desire for control and its willingness to exclude certain groups can significantly impact the rights of New Zealanders who are marginalised in Australia.
Economic factor
“In a context of neoliberal responsibilisation, the economic supports or political inclusion are removed.”[7] Under neoliberalism, the government prioritises private enterprises’ interests over the public’s. This tendency can lead to removing social safety nets which further marginalise and exclude New Zealanders who are already disadvantaged.
“Once in Australia, New Zealanders are in a worse position than migrants from other countries.”[8] They often experience lower educational outcomes, unemployment, and poverty rates. Poverty can lead to desperation and economic hardship, which may drive people to engage in criminal activity to survive.
Social factor
“The Tasman was a fuzzy frontier of identity in which identity was continuously constructed and reshaped in its interaction with outsiders, strangers, foreigners and aliens- the others. New Zealanders and Australians rarely regard themselves, individually or collectively as the same.”[9] The identity of Australian is often defined by those who are perceived as outsiders, i.e. New Zealanders. Therefore, discriminatory treatment is a social identification need.
Technology factor
“The capacity of police to manage immigrant populations was developed in the course of the twentieth century through a multiplicity of techniques and strategies.”[10] The technologies of fingerprint and photographic databases negatively impact New Zealanders who belong to the stigmatised group in Australia.
These technologies allow police to collect and store information about individuals, including their personal details, criminal records, and immigration status. This information can then be used to identify and track the individual who is not of good character.
Global trend pattern
“Punitive and fearful rhetoric against migrants has been a central plank of policy across many countries over the past decade.”[11] The use of punitive and fearful rhetoric against migrants is not limited to Australia but is a global phenomenon. e.g. immigration-related conduct is swept into the criminal realm in other countries such as America. “By 2005 immigration-related matters represented the single largest group of federal prosecutions, outstripping drug and weapon prosecutions.”[12]
Legal factor
“Crimmigration strategies have expanded across borders in ways that fundamentally distort established legal principles on the ever-shifting grounds of security.”[13] There is “a parallel system now operating for non-citizens as they are processed through separate treatments, laws, rules and institutions.”[14] “Crimmigration has expanded to include pre-emption. Non-citizens are targeted not just on account of their criminal behaviour but also their perceived associations, risky behaviours or suspicious associations.”[15] These strategies have led to a distortion of legal principles in the pursuit of security which caused New Zealanders to lose the protection of procedural fairness.
The personal influence of Peter Dutton
Australia tends to use immigration enforcement measures to achieve criminal justice objectives, have the personal hallmark of then Minister of the Department of border protection Peter Dutton. He was a police officer before becoming the Minister.[16] Due to his police background, he is more concerned about security and crime and prefers to take a hard-line stance on immigration policy.
Root cause analysis
On the one hand, Australia’s immigration policy aims to protect the country’s borders and ensure that those who enter or reside in the country have good character and do not pose a risk to the Australian community. This system does not prioritise the consideration of established legal principles and the value of preserving them, which are crucial for ensuring that legal decisions are consistent, predictable, and fair.
The immigration system is often perceived as draconian because those affected by it typically have no say in how it is designed. The immigration policymakers are usually Australian citizens who are not subject to the policy themselves. Only migrants like New Zealanders, for example, are subject to immigration policy, and even though the decision to cancel their visa and deport their family can have significant consequences, they have no means of changing the system.
Unlike the normal criminal procedure, the immigration system is not a typical legal system and cannot be challenged in the same way because “immigration law and criminal laws have begun to merge” [17] into a new form of the parallel legal system. “This convergence of immigration and criminal law brings to bear only the harshest element of each area of law.”[18]
The system is not challengeable politically either because “The migrant enjoys some legal rights, but not the same political or social rights as others in a country where they are living and paying taxes”.[19]
“The merger of immigration and criminal law is rooted in notions of membership that emphasise distinctions between insiders and outsiders.”[20] The social contract is a foundational concept in political theory that refers to the idea that individuals voluntarily give up some of their rights in exchange for protection and security provided by the government. “Membership theory has the potential to include individuals in the social contract or exclude them from it.”[21] The membership will be narrowly defined when there is a lack of a common enemy, especially in peacetime.
“Membership theory manifests in this new area through two tools of the sovereign state: the power to punish and express moral condemnation.”[22] This theory could explain why Australia sometimes cancels New Zealanders’ visas for only a minor offence.
On the other hand, New Zealanders also got something to blame for their financial hardship. E.g. “New Zealanders’ imagined landscape of their socio-political rights in Australia might seem irrational. Anecdotal evidence and submissions to their study indicated that a sizeable proportion of New Zealanders do not realise the situation before travelling to Australia, or they underestimate the risks.”[23]
Their visa status may also be contributing to their overall low economic status, as they face disadvantages when competing for positions in Australia without a permanent visa. These problems are particularly acute for New Zealanders living in Australia on temporary visas. Unlike other temporary visa holders who may leave Australia when their visas expire, New Zealand’s temporary visa does not have an expiry date, making them a group of “permanent, temporary” visa holders.
Their lower social and economic status in Australian society could significantly contribute to criminal behaviours and trigger the Section 501 visa cancellation and deportation mechanism under migration law.
A different point of view from other stakeholders
Primary research from my point of view as a migration agent
The migrant group, including New Zealanders, has limited access to reliable information because they are not integrated with the local community. If migrants cannot integrate with the local community, they will find it difficult to find a job. This difficulty is aggregated by the prejudice that “Pasifika and Maori populations are deemed culturally unsuitable to the Australian dream” [24]and the stereotype of New Zealanders as Bondi Bludgers.
Primary research from the perspective of the offender
Here is the insight I gained from Mr A, a New Zealander whose visa was cancelled.
He mentioned that making a rational decision is challenging when one’s livelihood is on the line. He lost his job after being injured at work and is currently in a legal dispute with his employer regarding compensation. When the combination of the stress of his situation and the pain from his injury became too much to handle, he turned to alcohol and marijuana for temporary relief, and he even shared the weed with some of his friends. Unfortunately, he was caught and sentenced to one year in prison, which resulted in the cancellation of his visa.
Based on his story, I gathered that Mr A’s visa cancellation was due in part to economic stress and his willingness to use marijuana, which is against the law in Australia. The lack of a social security net, such as a job seeker program, added to his financial strain when he lost his job. Under such distress, his use of alcohol and marijuana can be seen as understandable. To support himself, he turned to sell marijuana, which seemed inevitable due to his inability to work and his strong connections with the marijuana-loving community. Surprisingly, he found support and a sense of belonging within this marginalised group and found personal value in his successful marijuana business.
Analyse his situation by using How might we tools.
| User | need | insight |
| An injured new Zealander | Not be punished by selling marijuana. | When his back is painful, he feels the need to use marijuana. Not using the weeds may vacate his social connection and harm his mental health more. |
How might we legalise the trading of marijuana?
How might we find a way to make him associate with a mainstream group in society?
How might we use other legitimate drugs to kill his pain?
How might we make medical advice more available to him?
How might we educate him about the long-term harm of using marijuana?
How might we educate him on how to seek support in Australia?
How might we provide legal avenues to obtain medical marijuana?
How might we provide him with opportunities for personal growth that align with his value and interests?
Conclusion
This article highlights the need for greater awareness and understanding of why visa cancellation and deportation for New Zealanders far surpass the nature of their offending or their ‘risk’ to society. It demonstrates the problem is multifacet and entangled with the structure of Australian society. This issue could be analysed from many different perspectives, such as historical reason, political reason, social reason, economic reason, technical reason, and powerful politicians’ influence. It is also very deep and could be explained by using the membership theory.
[1] ‘MIGRATION ACT 1958 – SECT 501 Refusal or Cancellation of Visa on Character Grounds’ <http://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>.
[2] Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’ (2006) 56(2) American University Law Review 367, 376 (‘The Crimmigration Crisis’) citing citizenship & severity, supra note 5 at 617.
[3] Finnane (n 7) 443 citing from Pikering, S., 2005 Refugees and state crime, Annandale, NSW: Federation Press and Burke, A.,2008 Fear of security: Australia’s invasion anxiety. Port Melbourne, VIC: Cambridge University Press.
[4] Elizabeth Stanley, ‘Expanding Crimmigration: The Detention and Deportation of New Zealanders from Australia’ (2018) 51(4) Australian & New Zealand Journal of Criminology 519, 519 (‘Expanding Crimmigration’).
[5] Ibid 521.
[6] Mark Finnane, ‘Controlling the “alien” in Mid-Twentieth Century Australia: The Origins and Fate of a Policing Role’ (2009) 19(4) Policing & society 442, 443 (‘Controlling the “alien” in Mid-Twentieth Century Australia’).
[7] Stanley (n 5) 519.
[8] Melanie Nolan, ‘Welfare Limbo? Social Welfare and Citizenship Debates about New Zealanders Living in Australia’ (2015) 53(3) Commonwealth & comparative politics 253, 261 (‘Welfare Limbo?’).
[9] Ibid 269.
[10] Finnane (n 7) 442.
[11] Mary Bosworth and Mhairi Guild, ‘GOVERNING THROUGH MIGRATION CONTROL: Security and Citizenship in Britain’ (2008) 48(6) British journal of criminology 703, 714 (‘GOVERNING THROUGH MIGRATION CONTROL’).
[12] Stumpf (n 4) 369 citing teresa miller, citizenship & severity: rencent immigration reforms and the new penology, 17 GEO. Immigr. L.J. 611.613 (2003).
[13] Ibid.
[14] Stanley (n 5) 522.
[15] Ibid 519.
[16] ‘Peter Dutton Has the Worldview of a Queensland Cop. It’s in Our Interests to Give Him a Go’ <https://www.smh.com.au/politics/federal/peter-dutton-has-the-worldview-of-a-queensland-cop-it-s-in-our-interests-to-give-him-a-go-20220527-p5ap3u.html>.
[17] Stanley (n 5) 520.
[18] Stumpf (n 4) 378.
[19] Nolan (n 9) 255 citing Marshall, T.H (1970), Social policy. London : Hutchinson University Library.
[20] Ibid 379.
[21] Stumpf (n 4) 377 citing juliet stumpf, citizens of an Enemy land : Enemy combatants, Aliens, and the constitutional rights of the pseudo citizen, 38 U.C. Davis L. Rev. 79, 87-96 (2004).
[22] Ibid 378.
[23] Nolan (n 9) 263 citing Haig R 2010 Working across the Ditch- New Zealanders working in Australia. Wellington : Department of Labour.
[24] Stanley (n 5) 523.