Special treatment considered for Kiwis in Australian immigration appeals

New Zealanders would be given special treatment in Australian deportation appeals under recommendations from an inquiry set up by Home Affairs Minister Peter Dutton.

It also wants all young people from New Zealand who complete at least four years of their higher education in Australia to be eligible to access student loans.

The joint standing committee on migration held hearings last year into the efficiency of the deportation appeals process.

Many of the recommendations, published on Thursday, back submissions made by the New Zealand government, human rights groups and advocates for those held in detention centres and deportees.

The report concluded New Zealanders' special immigration status should be taken into account by decision makers when reviewing so-called 'character cancellations' of visas, although not in cases of offences such as rape, murder and sexual offences involving children.

Its recommendations also include cutting the time it takes to make decisions on deportation to between three and six months.

Legislation came into force in late 2014 making visa cancellations mandatory, meaning permanent deportation for prisoners who had been sentenced in their lifetime to more than 12 months in jail in total.

More than half of the 620 visa cancellations in 2017 involved New Zealanders.

Former New Zealand High Commissioner Chris Seed told the committee Australia had responsibility for long-term resident New Zealanders who were "essentially products of the Australian system" and that the deportations were "threatening to undermine the generally very positive trans-Tasman relationship".

He recounted how before the 2014 changes, "Australia was deporting about 65 New Zealanders a year, so we were running about one a week.

"As a result of the change, we quickly went to the figure of one a day, effectively."

New Zealanders now comprise more than one in 10 of the immigration detention population, with 150 New Zealanders awaiting appeals or deportation in the latest monthly figures at the end of December.

Advocacy group Oz Kiwi told the committee one New Zealander had been held on Christmas Island for two years while he appealed his deportation, despite being in Australia since he was six and not having returned to New Zealand in the intervening 25 years.

The group highlighted the impact of detention and deportation has on families, including Australian citizens and children.

Mr Seed, a former NZ High Commissioner to Australia and now head of the New Zealand Ministry of Foreign Affairs and Trade, spoke out strongly about a 16-year-old New Zealand boy detained for many months in an adult immigration detention centre hundreds of kilometres from his family.

New Zealand raised serious concerns about whether his treatment conformed with Australia's obligations under the UN Convention on the Rights of the Child, and the administrative appeals tribunal overturned his deportation.

"While the relevant visa was reinstated, we cannot know the personal impact that holding a minor in adult detention has had," Mr Seed said.

New Zealand's other concerns were that the threshold for what constituted a 'serious criminal record' was now too low and cumulative, capturing large numbers of New Zealanders and that there was less weight given to family connections in Australia, he said.

The committee called for a specific provision "allowing the historic special immigration status of New Zealand citizens, and its impact on take-up of citizenship in Australia" to be taken into account in reviews and appeals - but not for those most serious offences.

It recommended there should be more of a distinction between serious violent crime and others, with crimes such as rape, murder and sexual offending involving children being more likely than not to result in deportation.

The impact on victims should not be outweighed by ties to Australia, and the risk of re-offending should be the primary consideration in considering the most serious criminals, it said.

Lobbying group Visa Cancellations Working Group told the committee that the statistics showed, "contrary to popular opinion, it is not child sex offences, organised crime offences, or murders that lead to the bulk of visa cancellations".

Monash University analysed statistics from the Department of Home Affairs and found the most common convictions behind visa cancellations were common assault, drug offences including individual possession, and other forms of non-violent crime, including driving offences.

The committee heard citizenship was still an expensive business for New Zealanders who arrived after 2001, with the new New Zealand 189 skilled visa costing $3600 for the primary applicant, $1800 for their partner, and $800 to $1800 for each child, depending on their age.

But it had a message for New Zealanders: "Non-citizens who are permanent residents of Australia must understand the risks associated with choosing not to apply for citizenship.

"The Department of Home Affairs should ensure it communicates these risks to long-term residents of Australia in the strongest terms."

The report's recommendations, if acted upon, would not be a get-out-of-jail-free card for New Zealanders facing detention and deportation.

The committee's report strongly underlined that the system is designed for protecting Australians from serious criminals. Legal aid provisions should not be changed to allow New Zealanders to be represented at tribunal hearings, it ruled.

The report also urged Parliament to push through legislation which would make character cancellation provisions stronger for violent offenders.

Recommendations not 'game-changing'

The recommendations register barely at all with Brisbane lawyer Joel McComber whose firm has handled 100 New Zealand detainees.

"It adds, I guess, one more string to the bow but I don't think it's a game-changing addition if it does come to pass," he said.

"There's already a consideration that the strength and duration of a person's ties to Australia is something to be considered. This doesn't take things much further than that."

It was a nod by the MPs, he said, to the history of trans-Tasman migration that left New Zealanders especially vulnerable.

In 2017, the rate of visa cancellation was five times higher for New Zealanders than for any other nationality in Australia.

New Zealanders at one time could access social security benefits without needing to be citizens, then when access to benefits was cut in 2001, so too was a ready path to citizenship, leaving many sitting for years on special category visas.

Joanne Cox from Oz Kiwi said there was a glimmer of hope that the cross-party committee would credit there were reasons to give historical considerations weight in individual cases.

However, whether New Zealanders actually got special consideration, she said, would still depend largely on the stance taken by Home Affairs Minister Peter Dutton.

The parliamentary committee also advocated easing up slightly on non-citizens facing cancellation under law Section 116, so they would get two week's written warning of cancellation instead of just one week.

That was welcome, Mr McComber said, but the committee had not addressed how little verbal warning they were often given: "20 or 30 minutes".

Possible good news for young New Zealand students eyeing university

One of the most surprising recommendations from the committee seemed less connected to its remit but would have big consequences for New Zealand students if introduced.

The report detailed submissions it received about New Zealanders unable to get student loans and recommended changes be brought in.

Oz Kiwi said lack of access to loans may make offending more likely.

"We know that there are cohorts of young New Zealanders in Perth and on the Sunshine Coast and in Melbourne who, once they reach middle high school, realise that they have no pathway to higher education. So that becomes a trigger for them, and they start falling through the cracks."

While New Zealanders pay the same price for a degree as Australians and are eligible for Commonwealth supported places, most are not eligible for student loans through the Higher Education Loan Program (HELP) except a special cohort since 2016 who had become residents at least 10 years ago.

The full report can be found here.