‘They’re off our soil’
We’re not just friends, we’re family. That’s what we’ve been told, anyway. But Australia keeps giving New Zealand its biggest problems in the form of hundreds of criminals who have spent years building criminal records in their country. Blair Ensor and
It was 5am when Anya WetiSafwan woke to the sound of someone banging loudly on her door. A long-time drug addict, and prolific shoplifter, Weti-Safwan assumed it was the police. She wasn’t worried: since October 2016, she’d turned her life around.
A spell in Sydney’s notorious Villawood Immigration Detention Centre, with the threat of deportation hanging over her, scared the 34-year-old straight. She’d successfully appealed the decision to cancel her visa.
On September 11, 2017, still in her pyjamas, she was greeted by elite police from a specialist group known as the Raptor Squad. They said her visa had been cancelled, pushed her against the wall and placed her in handcuffs.
Weti-Safwan’s mind raced: ‘‘What the f... is going on?’’
The mother of one, who’d lived in Australia for more than three decades, had become a target of sweeping and unchecked powers vested in Cabinet enforcer Peter Dutton to refuse or cancel visas, and to detain or re-detain non-citizens without warning.
These discretionary powers have attracted widespread international criticism, as unjust and likely to break international human rights obligations.
The New Zealand Government has been a vociferous objector, as the policy disproportionately affects Kiwis.
But the Australian Government has continued unabashed, and since the Scott Morrison-led Liberal Party returned to office in May, it has been made clear there will be no easing of the settings.
Of most concern to the Beehive are provisions that make it easier to deport minors.
‘‘The Australian Government has behaved arrogantly. I wonder why the New Zealand
Government remains so friendly with [them] given the way Australia treats it in relation to this issue,’’ leading immigration lawyer Greg Barns says. ‘‘Sadly, when it comes to Australian voters, in far too many cases fear and racism rule and kicking Kiwis is fashionable.’’
‘They’re off our soil’
Dutton, the architect of the forced deportation policy, blindsided the New Zealand Government just two days before Christmas 2014.
He assumed the immigration portfolio, from Scott Morrison, in a Cabinet reshuffle on December 21, and swiftly implemented the changes.
The country’s 60-year-old migration laws were amended to impose a character test on visa applicants and non-citizens. Cancellation of a visa was mandatory if an individual failed the character test because they had a substantial criminal record, defined as imprisonment for 12 months or more.
Although the changes kicked in immediately, it took almost a year for the first ‘‘501s’’ to arrive.
Before 2015, between 50 and 85 Kiwis were deported each year. New Zealand deports one to three Aussies each year, and only if they have been in the country less than a decade.
Twelve men came on a charter flight from Melbourne to Auckland on November 19. Dutton celebrated their removal to Australian media, saying: ‘‘They’re off our soil and they’re back in New Zealand.’’
Officials and politicians had worked tirelessly to prepare for the arrival. Then-prime minister John Key lobbied his opposite number Tony Abbott at formal talks in February.
Meanwhile, the number of Kiwis in detention centres – including Christmas Island, 2600km off the coast of Western Australia – soared to about 300.
Malcolm Turnbull rolled
Abbott and in October met Key. In the wood-panelled rooms of Auckland’s Government House, the 501s dominated conversation. Turnbull was insistent Kiwis would get no special dispensation. But the two premiers had a matey relationship, and the Liberal Party leader had to give Key a win.
The pair announced that Kiwis stuck in detention centres could fly home while they appealed their visa revocations. Turnbull promised to clear a backlog and fast track appeals.
‘I’ve had two years taken away from my life and it’s been quite traumatic. All I want to do is get my life back to normal.’
Anya Weti-Safwan
The following February, Key called on Turnbull in Sydney. It was an election year, and the deportation policy had proved popular in Australia, but Turnbull offered a concession. He announced an easier route to citizenship for Kiwis.
It had been a sticking point in the relationship since immigration rules had tightened in 2001.
A year later, he overturned the changes. And the relationship continued to slide when Jacinda Ardern’s Labour Party formed a minority government in October 2017.
She chose Australia for her first overseas trip, travelling to Sydney to meet Turnbull just 10 days after taking office. The stakes for this meeting were high. Ardern would later describe it as ‘‘challenging’’. No progress was made on deportations.
‘Corrosive in our relationship’
The Department of Prime Minister and Cabinet regularly briefed Ardern’s office on controversial or tricky deportation cases.
In February, a briefing contained a warning: a parliamentary joint committee had recommended migration laws be changed to allow for the removal of under-18s in a report entitled ‘‘No one teaches you to become an Australian’’. Turnbull’s Government was considering the idea.
Ardern was back in Sydney in March, for dinner and an hour of formal talks with Turnbull. She ‘‘made a point of registering my Government’s ongoing concerns’’ about the ‘‘increasing deportations’’, an April Cabinet minute notes.
Foreign Affairs Minister Winston Peters also met with his then-opposite Julie Bishop, at a Waiheke Island vineyard.
Their entreaties made no impact. By May 2018, New Zealand officials were alarmed by two ‘‘relatively new aspects’’ of the policy. ‘‘We are seeing an increasing use of removals on the basis of ministerial discretion, and increased willingness to consider the deportation of young persons,’’ diplomats from the Ministry of Foreign Affairs Australia division wrote to Peters. The briefing went to seven other ministers, including Ardern.
As well as section 501, the Migration Act gives Dutton powers to cancel the visas of those with lesser criminal records, if he considers there is a risk to the community or an individual.
Unlike section 501 cancellations, he doesn’t have to consider any connections to Australia under section 116.
Officials noted Dutton was ‘‘ramping up’’ use of section 116: between 2017 and 2019 there
would be a 400 per cent rise in the cancellation of visas under section 116, for offences that did not meet the 501 threshold. A police briefing around the same time warns the flow of deportations ‘‘shows no sign of slowing’’ and ‘‘new issues are emerging’’.
In June, Wellington advisers became aware of a teenager facing deportation on those grounds. Ardern called a crisis meeting for June 21, which would turn out to be the day her daughter Neve was born.
Peters led the discussions with Justice Minister Andrew Little, Police Minister Stuart Nash, Corrections Minister Kelvin Davis and Immigration Minister Iain Lees-Galloway.
Little and Peters publicly took up the 17-year-old’s case, appearing on an Australian current affairs show.
There was a ‘‘venal, political strain’’ to the policy, Little said. Peters, at the time the acting PM, accused Australia of breaching the UN Convention on the Rights of the Child.
Their combative language drew attention and Dutton hit back, suggesting Kiwis were freeloading on efforts to deter ‘‘boat people’’.
Greg Barns, of the Australian Lawyers Alliance, represented the young man, who was removed from Sydney and placed in a Melbourne adult detention centre. He’d lived in Australia since the age of 10.
‘‘Even some of those working in the detention centre thought he shouldn’t be there . . . [they] were appalled.
‘‘You are putting a young person in a very hostile and dangerous environment, removing them from their families with the threat of sending them back to New Zealand where they may have no family.’’
The deportation was eventually overturned by the Administrative Appeals Tribunal (AAT), the body that hears visa cancellation appeals.
‘‘The New Zealand Government is right to be concerned,’’ Barns says. ‘‘Peter Dutton has misused and abused his revocation of visa powers and the fact that a person is a minor doesn’t seem to concern him.’’
By late August, Australia had a new prime minister, Scott Morrison, and New Zealand a new problem: the proposed
Migration Amendment (Strengthening the Character Test) Bill 2018. Australian immigration minister David Coleman introduced the bill, after anecdotal reports by some police forces that judges had expressly reduced sentences to avoid triggering the criminal record threshold for mandatory visa cancellation. The bill makes specific grounds for not differentiating between adults and under-18s.
New Zealand’s high commission in Canberra began immediately lobbying ministers and senior mandarins. High commissioner Annette King, a former police minister, appeared before a Senate committee inquiry to register concerns.
She said: ‘‘Australia has responsibilities for young people who grow up in Australia and are products of Australian society . . . the bill would make an already bad situation worse by exacerbating the imbalance in deportation policy between Australia and New Zealand.’’
The new laws ‘‘would place an increased burden on the New Zealand Government and individual New Zealand communities to rehabilitate Australian-raised offenders’’.
The vast majority of public submissions opposed the bill, and included submissions from the Law Council of Australia, the Australian Human Rights Commission, the United Nations High Commissioner for Refugees and Australian Lawyers for Human Rights.
However, the committee recommended the bill pass and in September, it received a second reading in the House of Representatives.
At their annual talks, held at Government House in Auckland in February, a clearly frustrated Ardern was blunt with Morrison. ‘‘In my view this issue has become corrosive in our relationship over time,’’ she said.
Little says the New Zealand Government will continue to protest. ‘‘I most recently said to Peter Dutton . . . we are not going to let this go, because we can’t. People are being very detrimentally affected by it.
‘‘Every New Zealand minister meeting a counterpart is expected to raise this issue because it is wrong.’’
One particular area of concern is the lack of appeal avenues for Kiwis.
Some have been saved from deportation by appealing against the government’s decision at the AAT.
However, the minister for hme affairs has personal powers to set aside AAT decisions. Decisions made by ministers personally cannot be reviewed in the AAT, but may still be subject to judicial review.
Barns says the government has stacked the tribunal with ‘‘politically friendly appointees’’.
‘‘Those members of the AAT tribunal who have opposed [Dutton] and overturned his decisions often find their terms are not renewed.
‘‘And, [the government] has appointed a large number of people from the Liberal and coalition parties to AAT appointments, including exLiberal MPs. So, they have stacked this tribunal, and sought to curb its independence by appointing friendly, rubberstamping individuals.’’
‘A creeping intoxication with power’
Anya Weti-Safwan is one of the
20 per cent who beat the system. Now 37, she only briefly knew life in New Zealand.
Born in Waikato Hospital, she moved with her family to Australia at three. Troubled by her parents’ marriage breakdown, she rebelled as a teen and became a heavy cannabis user, later turning to heroin.
Her rap sheet records her first convictions – possession of prohibited drugs, illegal car use, offensive language and unlawful entry – in February 1997, aged 15.
Over the next 18 years she appeared in court for sentencing
17 times and did at least six stints in prison. Many of her convictions were for shoplifting and theft – committed to feed her drug addiction. She was never charged with violence offences.
In February 2005, WetiSafwan was threatened with deportation. She continued to offend and 18 months later, her visa was cancelled. She spent nearly three years in Villawood but was released in 2009 after ministerial intervention.
In detention she met her husband, a Lebanese asylum seeker who was later granted a visa. They married, behind the wire, in 2008.
Weti-Safwan’s offending did not stop after she was released: her record lists convictions in
2010, 2013, 2014 and 2015. Again, she was warned that her immigration status was in jeopardy.
The birth of her daughter in
2012 was one factor that saved her from deportation.
Two years later she hit ‘‘rock bottom’’ when her child was removed from her care. Another jail sentence, this time 13 months for shoplifting, saw her visa cancelled again. She appealed to the AAT.
Weti-Safwan has a ‘‘substantial criminal record’’ which meant she failed the character test. The tribunal, therefore, had to consider whether there was another reason to overturn the decision.
At a hearing in September
2016, Weti-Safwan pledged to stay off drugs and turn her life around so that she could be reunited with her daughter.
The family would be torn apart. Her husband’s criminal record would likely prevent him from entering New Zealand.
The tribunal ruled WetiSafwan should get a final chance, reinstating her visa.
Weti-Safwan steered clear of trouble and began working for the family business – repairing and selling second-hand lawn mowers and chainsaws. ‘‘For the first time in 25 years I actually did the right thing,’’ she says. ‘‘Everything was back to normal.’’
Dutton did not agree. He judged the cancellation of her visa was in the ‘‘national interest’’ and overturned the AAT decision in April 2017.
‘‘Although . . . Ms WetiSafwan’s offending may be considered relatively minor when each offence is considered individually, I find that the cumulative effect on the community of her many offences is serious,’’ he said. She was an ‘‘unacceptable risk’’ to the community, which outweighed her ties to Australia or the consequences for her family.
According to Department of Home Affairs guidelines, national interest is cited in ‘‘exceptional cases’’ such as those involving ‘‘national security, organised crime and crimes against humanity’’. Such a ruling can only be challenged through the Federal Court.
It took several months for the Raptor squad to knock on WetiSafwan’s door and take her to Villawood detention centre.
She twice lodged appeals with the Federal Court. And despite being told she was fighting a losing battle, Weti-Safwan won.
Her lawyer Susan Phillips successfully argued Dutton had erred by not giving her the opportunity to file submissions or further material.
Both women cried when the decision was delivered. It was the third of its kind this year.
Phillips believes Dutton’s decision to personally cancel Weti-Safwan’s visa was an example of a ‘‘creeping intoxication with power’’.
‘‘Deportation is a whole second tier of punishment and is so unjust,’’ she says. People like Weti-Safwan ‘‘are not statistics, they are real people . . . members of the Australian community – they are our people’’.
A week after her release, Stuff visited Weti-Safwan at home in Bass Hill, southwest of Sydney.
‘‘It means the world to me to have my freedom back again,’’ she says. ‘‘I’ve had two years taken away from my life and it’s been quite traumatic. All I want to do is get my life back to normal.’’