NZer's rare win over deportation order

8:55 am on 4 October 2017

A New Zealander who has lived in Australia since he was four has had a rare win against a deportation order, with a tribunal dismissing claims he was a gang member.

Departure board, airport

The Administrative Appeals Tribunal (AAT) said evidence of the man's membership of a gang was "speculative and unsubstantiated". Photo: 123RF

The Victoria Police told the Administrative Appeals Tribunal (AAT) the man was a suspected member of the violent Apex gang, now believed to be dissolved.

But the tribunal said it was not satisfied that the man "was or had ever been a member of the Apex gang" and overturned his visa cancellation.

It ruled he was not a violent offender, with the majority of his convictions for property crime and minor drug offences, and had never been in jail.

The man suffered from a mental illness, which would have forced his mother to return with him, leaving all but one of her other children behind in Australia.

The tribunal said in its decision that the man's pattern of offending "could be attributed to his mental health, rather than any association with a criminal gang". The applicant "may be a risk to the Australian community on the basis that his mental condition remains unstable" but the tribunal considered the risk to be low.

"In deciding whether the visa should be cancelled, the AAT considered the applicant has a compelling need to remain in Australia given his illness and the care he receives from his mother.

"It accepted that if the applicant had to return to New Zealand, his mother would have to go with him and take her youngest son, currently in year 8 at school, leaving behind other children and grandchildren.

"The AAT also held that his mental illness was a significant extenuating factor in his criminal offending, and was satisfied the applicant would receive the treatment and support he required if the visa was not cancelled."

The tribunal heard the 21-year-old has a three year old child, who is an Australian citizen.

It said the evidence of his membership of a gang was "speculative and unsubstantiated".

"While accepting he had been associated with a number of people who were known or believed by Victoria Police to be members of the Apex gang, the AAT considered that the evidence established only ad hoc interactions with persons who may be associated with criminal activity and observed this was not unusual due to his place of residence and the time he had spent on the streets.

"It found that the evidence did not establish meaningful or enduring associations, and noted the applicant was never charged or convicted of any offence arising out of these interactions."

The decision did not reveal whether the man had been held in a detention centre while his case was being decided.

The latest figures from Australia's Department of Immigration and Border Protection show 178 New Zealanders, including 11 women, were in detention facilities at the end of July while their deportation cases were settled.

New Zealanders are the largest group being detained in on-shore and off-shore facilities, and outnumber refugees and overstayers from Iran and Sri Lanka combined.

Other appeals dismissed

The Administrative Appeals Tribunal confirmed on Monday the cancellation of another New Zealander's visa.

Aaron Johnstone, aged 43, of Perth, appealed to the tribunal against his deportation for a string of assaults, a burglary and drink driving.

The tribunal last week refused the appeal of Michael Bartlett, who arrived in Australia in 1982 as a 16-year-old and committed 32 offences including fraud, forgery, assault and theft.

It also confirmed the cancellation of the visa of a former Commonwealth Bank of Australia business analyst, Kerry Blyde, who its ruling said became a crystal meth user after moving from New Zealand and was convicted of supplying the drug.

That was despite the sentencing judge observing he had skills useful to Australia and saying "if there is discretion to not deport him I would recommend it be exercised".