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An increasing number of New Zealand citizens who’ve had their Australian visas revoked under strict new measures are being detained on Christmas Island. By Megan Anderson.

The plight of New Zealand ‘501’ detainees on Christmas Island

The Christmas Island detention centre.
Credit: GETTY IMAGES

On the day Kurdish-Iranian refugee Fazel Chegeni was found dead on Christmas Island, New Zealand detainees sent text messages proclaiming their solidarity with asylum seekers held in the Serco-run detention centre.

“On Friday night our brother managed to get over the fence and spend his last days in this living hell a free man,” Kiwi-Melburnian Lester Hohua wrote in a text message last Sunday, commenting on the agonising five years Chegeni spent in Australian detention. “Now we stand together! 501 and refugee.”

About 40 New Zealanders are being held on Christmas Island and about 200 detained across Australia after their visas were revoked by Immigration Minister Peter Dutton under section 501 of the Migration Act. The “501s”, as they’re dubbed by detainees, are made up primarily of non-citizens who hold a “substantial criminal record” whereby they’ve served 12 months or more in prison. 

In December last year, the definition of “substantial” was broadened to include multiple past offences that collectively add up to 12 months. Also considered are suspended sentences or time spent in a “facility or institution”, such as rehab, after an acquittal. The amendment was just enough to rope hundreds of low- as well as high-level offenders into the visa purge, with many of them New Zealanders. It’s estimated that half the New Zealanders affected have lived in Australia for more than a decade. 

Dutton, however, this week reiterated the criminal record of the detainees, stating that “the vast majority of people within the Christmas Island detention centre are serious criminals”.

On both sides of the Tasman, the appeals from the New Zealand detainees are highlighting the murky status of more than 640,000 Kiwis living in Australia.

“It is a human rights issue,” says New Zealand Labour MP Kelvin Davis, referring not only to the conditions of the detention centres, but to how the New Zealanders are facing deportation in the first place. 

“Some people … have come across as babies: they’ve been educated in Australia, they’ve found work in Australia, they’ve married and had children and grandchildren in Australia. They consider themselves Australian; they just happen to be officially New Zealand citizens.”

After a social security law change in 2001, New Zealanders arriving in Australia lost a clear path to citizenship. Instead of gaining permanent residency on entry under the Trans-Tasman Travel Arrangement, they became special category visa holders: permitted to work and live indefinitely in Australia, but with restrictions and without the right to vote. While New Zealanders can access Medicare and limited social security payments, they need to apply for permanent residency before applying for citizenship – competing with people abroad for a capped number of skills-based visas. Meanwhile, Australians arriving in New Zealand can vote after one year, receive full government benefits after two, and become citizens after five. 

Howard bullying

New Zealand MP Phil Goff, who was the foreign minister in Helen Clark’s Labour government when the 2001 restrictions were introduced, says New Zealand was essentially bullied by the Howard government into accepting the conditions. After Howard insisted New Zealand compensate welfare payments for Australian-based New Zealanders, the New Zealand government refused.

“If you’re getting the tax, why would New Zealand be meeting the cost of any support needed?” points out Goff, who is heading to Canberra at the end of November to urge a policy change with New Zealand opposition leader Andrew Little. “Yes, there should be high expectations of Kiwis going over there and pulling their weight, but equally there should be high expectations of them having the same rights if they’re making the same tax payments and meeting the same responsibilities.”

Erina Morunga, founder of advocacy group Iwi n Aus, is in regular contact with at least four of the New Zealander detainees on Christmas Island and their families. She says detainees are reporting abuse from Serco guards, a callous use of solitary confinement, or “segro”, and oppressive conditions under the hands of the Australian government.

“They’ve been treated like animals, and their cry is, ‘What have I done? Why am I being treated in this way?’ ” says Morunga, referring also to the death of 23-year-old Junior Togatuki in September. Togatuki, who had lived in Australia since he was four, committed suicide in solitary confinement at Goulburn’s Supermax prison, a month after his time was served and his visa was revoked. “He was a free man, but they kept him in solitary confinement,” says Morunga.

Meanwhile, Hohua has been taken from Maribyrnong Immigration Detention Centre in Victoria to Yongah Hill in Western Australia and, finally, to Christmas Island. His visa was revoked in February after he served 12 months in jail over an assault charge he’d spent two-and-a-half years fighting, before running out of money and emotional steam. Now he is left broiling in jungle on an island in the Indian Ocean.

Hohua says each move was bewildering and traumatic. About 30 to 40 emergency response team staff would surround him at 3am “with shields, like riot gear”.

“They just bust your door open and rip you out of bed, chuck you on the floor, zip-tie you, and then off you go,” he says. “You feel like you’re being kidnapped.”

Before his conviction, Hohua was working in Melbourne with his fiancée for four years, and had spent the previous six in Sydney. All his immediate family are in Australia. Last year, he buried his grandmother in Australian soil. Now he’s facing deportation to a country he doesn’t recognise.

“I don’t have anyone left in New Zealand… People make mistakes, and people get rehabilitated, and I believe in a second chance.”

Almost 5000 kilometres away from Christmas Island, in Brisbane’s Nerang Neighbourhood Centre, co-ordinator Vicky Rose says she is “hammered” by New Zealand families seeking help. 

‘Barrier after barrier’

Queensland houses the majority of Australia’s Kiwi population – 192,037 at last count – and Rose says of the 30 inquiries they receive daily, more than half are from New Zealanders. She says her youth worker currently assists 20 homeless children, all of them New Zealand Maori ineligible for government benefits.

“We’re supposed to be working with the kids about further education or employment and things like that, but their first and foremost issues are, ‘When am I going to get my next feed?’ and ‘Where am I going to sleep tonight?’ ”

The education prospects for these kids aren’t great either, with New Zealanders ineligible for HECS funding. While New Zealanders pay domestic fees for tertiary studies, Rose says the cost of education is still “out of reach for many families”. 

“What’s happening is we are seeing kids finishing school and thinking, ‘What’s the point?’ There’s just barrier after barrier after barrier.”

While parliament is pushing through legislation for New Zealand youth to access HECS after residing in the country for at least 10 years, most Australian Kiwis still won’t qualify.

And if things get tough, they’re stuck. While New Zealanders are required to pay the levy towards the National Disability Insurance Scheme, they can’t claim it.

“If there’s any disability or sickness issues, they don’t qualify for support around that,” says Rose. “If they end up getting in with the wrong crowd and develop a drug habit or alcohol habit, they can’t go to rehab because they can’t contribute to their stay there [and] they can’t get emergency accommodation.” 

New Zealand women are suffering under the restrictions, with few options available for those in violent relationships or facing custody battles – especially when they’re financially dependent on their partner.

“It’s just appalling,” says Rose. “Because if they’ve got kids and want to leave, how are they meant to support themselves? It’s not until something happens when you realise what your residency means. It’s a scary thing to not have that security.”

Timothy Gassin, of advocacy group Oz Kiwi, says after the 2001 restrictions the consequences “weren’t really spelt out” to Australia’s New Zealander community. 

“People were still generally left with the impression that after a few years they’d be able to become citizens. But that just wasn’t the case anymore.”

Leaving in droves

Rose says Nerang Neighbourhood Centre is using emergency relief funding to help Kiwis in trouble move back to New Zealand. But even without Rose’s help, New Zealanders are leaving Australia in droves: New Zealand reported in May the first net gain of migrants from Australia to New Zealand since 1991. 

While a thriving New Zealand economy and stable government are also factors in the change, Gassin says publicity around Australian Kiwis has “harmed the image of Australia a lot”.

While Prime Minister Malcolm Turnbull and his New Zealand counterpart, John Key, have urged New Zealand-born detainees to lodge their appeals from New Zealand, Australian Lawyers Alliance national president Greg Barns argues doing so would be “extremely difficult”.

“It’s absurd to suggest that a person should allow themselves to be deported, and then from New Zealand to try and litigate a matter in Australian courts,” says Barns, who is working on a submission to the Australian Human Rights Commission on behalf of the detainees and the Australian and New Zealand Greens.

In New Zealand, Kelvin Davis is urging the country to boycott Julie Bishop’s bid for a seat on the United Nations Human Rights Council.

Back on Christmas Island, conditions are grim. Reports of beatings, tear gas and the firing of plastic bullets emerged after guards attempted to subdue detainees who began rioting after Fazel Chegeni’s body was found at the base of a cliff on Sunday.

Says Davis, “With what’s going on in these detention centres – not to mention what’s going on in Nauru – it’s just incredible that Australia [is] trying to hide what’s going on in their own backyard.”

This article was first published in the print edition of The Saturday Paper on Nov 14, 2015 as "Double-crossing the Tasman". Subscribe here.

Megan Anderson
is a Melbourne-based freelance journalist and online editor of Going Down Swinging.

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