As the government announces a lifetime ban on boat arrivals ever visiting Australia, criminals deported to New Zealand can find their way back. By Karen Middleton.

Contradictions in Dutton’s refugee life ban

Minister for Immigration and Border Protection Peter Dutton at Parliament House on Wednesday.
Minister for Immigration and Border Protection Peter Dutton at Parliament House on Wednesday.
Credit: AAP Image / MICK TSIKAS

When parliament previously sat two weeks ago, Immigration Minister Peter Dutton was trumpeting the government’s success in deporting foreign nationals who had committed crimes in Australia.

He was especially pleased about the deportation of members of outlaw motorcycle gangs, many of whom are New Zealand citizens.

Dutton told parliament on October 18 that the government had cancelled the visas of 106 bikies in the past year.

“We will not stop, because we are going to continue to work with those agencies to clean up the sector, to make sure that we can deal with these outlaw motorcycle gang members so they cannot inflict the pain and agony on young children and families around the country,” he told the house of representatives.

But New Zealand Police is concerned that these deportees, who in some cases have not lived in NZ for decades, are now inflicting just such troubles on their citizens instead.

Australia’s handling of visa cancellations has caused trans-Tasman tensions, with the NZ authorities frustrated that they are being given inadequate warning about the imminent arrival of these people, some of whom have no current ties there, other than retaining a passport.

And it seems New Zealand may have identified a loophole in the process that is allowing some people to turn around and come back to Australia.

The Saturday Paper understands NZ authorities have notified their Australian counterparts that they believe some of those who have been deported from Australia on character grounds – either because of criminal convictions or association – have legally changed their names, obtained new passports and headed back across the Tasman.

Because they have not committed offences in New Zealand, the NZ government and its agencies have limited capacity to stop them.

It contrasts with the treatment of refugees, who are now being told they will not be allowed into Australia for their lifetimes, even if they are settled in and become citizens of a third country and despite not being convicted of any offence.

While some of the foreign nationals deported after committing serious offences are seemingly able to move back to Australia, the government has announced it is changing the law so that refugees detained in offshore immigration processing centres on Papua New Guinea’s Manus Island or on Nauru will never be allowed to even visit.

In response to inquiries from The Saturday Paper, a spokeswoman for New Zealand Police confirmed there had been an increase in the number of New Zealanders being removed from Australia since Australia changed the criteria for deportation under the Migration Act two years ago.

Where previously, foreign nationals were deemed to have failed the character test if they were convicted of serious offences and served five years or more in jail, now the threshold is one year, which can be counted cumulatively if a number of lesser offences with shorter jail terms are involved.

She confirmed the two countries had signed an information-sharing agreement on September 29 last year providing for the exchange of information about deportations.

“New Zealand agencies use this information to assess the risks and needs of persons returning to New Zealand,” she said.

“The Government recognises that many persons being removed have little or no family in New Zealand and that the disruption of removal creates difficulties reintegrating and can increase the likelihood of reoffending. The priority for police is to ensure community safety and assist agencies responsible for facilitating their integration into the community.” 

Despite Dutton’s emphasis on motorcycle gangs, the NZ Police spokeswoman said most of those being returned were not members of gangs. But she said the authorities were monitoring “persons with gang connections, including where persons are members of gangs that are not established in New Zealand”.

She said NZ agencies “continue to work closely with their Australian counterparts to ensure that New Zealand receives relevant advance information to make these assessments”.

NZ Police told The Saturday Paper New Zealand has systems in place to “reduce the likelihood of known offenders changing their names and applying for new passports”.

“New Zealand agencies are currently undertaking wider work on what can be done to improve how the justice and border sectors manage offender identities,” a spokeswoman said.

1 . Lifetime ban on boat arrivals

The apparent loophole throws into relief the harshness of Dutton’s proposed lifetime ban on refugees receiving any kind of visa to visit Australia – either for work, to visit family or as tourists.

The move would affect all those transferred to either of the two centres on or after July 19, 2013 – the date on which then prime minister Kevin Rudd declared that no future asylum seeker would ever be allowed to settle in Australia.

Rudd entered the fray via a newspaper column this week, saying this went way beyond his pledge.

“This measure is about the politics of symbols, designed to throw red meat at the right, including the Hansonite insurgency, and to grovel to the broad politics of xenophobia,” Rudd wrote in the Fairfax press. “Turnbull, once an intelligent, global citizen, knows better.”

Refugee advocates are deeply concerned at the impact of the ban, especially on those in offshore centres who have family already in Australia.

The new law, once legislated and enacted, would mean they would never be able to be reunited, at least not onshore.

According to the Department of Immigration and Border Protection’s latest update, there were 873 people in the Manus Island centre, and 396 on Nauru, as of September 30.

There were 652 on Manus confirmed as refugees. Of a total 1196 who have had their status determined while in detention on Nauru, 942 were confirmed as refugees.

During September, the department says 10 detainees left Australia voluntarily, two were forcibly deported back to their home countries, and six left voluntarily from Manus or Nauru.

A spokeswoman for Peter Dutton has confirmed the newly proposed legislative change will only affect those who have been housed on Manus or Nauru, not those on Christmas Island, which she says is now “viewed as a mainland centre”.

Because of its high security, the Christmas Island centre is being used for pre-deportation detention of those foreign nationals who are convicted criminals and others being removed on character grounds, many of them New Zealanders. At the end of August, there were 247 people held there. They include 52 asylum seekers not necessarily being detained for criminal offences.

The Saturday Paper has been told the proposed refugee ban is linked to a settlement deal with a developed country, which has agreed to take some of those confirmed as refugees.

It is designed to ensure those transferred to settle in that country can’t then turn around and seek to come to Australia.

Late this week, Dutton was still declining to confirm any settlement deal.

2 . Detainee marriages

His spokeswoman refused to answer questions from The Saturday Paper, including relating to the minister having linked the proposed ban to “intelligence” he had received that some Australians were hoping to travel to Manus Island to marry detainees.

“That is not acceptable,” Dutton said on Sunday. “We are not going to allow arrangements that would subvert the program and the success that we’ve had within this process.”

While his proposed ban – if passed – may ensure they can’t access spousal visas, he appears to be too late to stop the marriages.

The Saturday Paper has been told that at least 12 marriages have already taken place between Australians – including caseworkers and former detention centre staff – and refugees on Manus Island.

Refugee advocate Pamela Curr confirmed the marriages, which she says have occurred since Manus Island detainees were allowed free movement in the wake of the PNG Supreme Court decision that the centre was unlawful.

Curr says they have taken place in local churches and that more are scheduled.

“Some of the marriages were with staff who established relationships – friendships – while they were in the camp. They’ve kept up contact and gone back and married them.”

She declined to speculate on whether all were love relationships or whether some were designed primarily to help detainees get to Australia on spouse visas.

“Refugees and asylum-seekers – they’re people like us who form relationships,” Curr said. “The tragedy is our laws are fracturing – have the potential to fracture – relationships forever.”

3 . Deterrence affected by third-country settlement

Curr condemned the government’s move to ban refugees from ever coming to Australia on any kind of visa.

“The state is placing itself as a kind of god, deciding which families can be together and which can’t.”

But the minister is unmoved. “If we arrive at a third country settlement option,” Dutton told 2GB on Thursday, “and that is if we find a new place for people off Nauru and Manus to go, then we’re not going to have them come back to Australia through the back door on some tourist visa because that would just be the people smugglers rubbing their hands together having found another way to get people back to Australia.”

There is still unease among some government MPs about the hardline nature of the move.

But nobody thus far is willing to speak out against it, including those who have been most vocal in the past – Western Sydney MP and now junior minister Craig Laundy, and Victorian backbencher Russell Broadbent. Both declined requests for comment.

Some in the government are also concerned the change won’t actually do what it’s meant to do – act as a deterrent – because it introduces the prospect that asylum seekers who set sail for Australia but wind up in offshore detention and are then confirmed as refugees may eventually reach an attractive third country.

One Liberal MP, backbencher Craig Kelly, acknowledged this week that a third-country settlement deal could mean the incentive to come to Australia remains.

“That would be one issue, yes,” Kelly told Sky News. “It would make it more advantageous or more attractive for someone to take that risk. So for all of the protections that we have, you’re opening up a little net.”

There has been speculation about possible deals with New Zealand, the United States or Canada.

Early this year, NZ offered to take 150 of the refugees detained in Australia’s offshore centres, an offer Australia declined. This week, NZ Prime Minister John Key ruled out any arrangement that involved the condition that the refugees, if they became NZ citizens, could never travel back to Australia.

“We’ve got no intention of having separate classes of NZ citizens,” Key said, suggesting Australia also had “no obvious appetite” to accept the existing offer. “Fundamentally there is a free movement from one country to the other and that is based on that you are a NZ resident or citizen at least and that ultimately you don’t have criminal convictions.”

A spokeswoman for the US embassy declined to comment on renewed speculation that the US may be involved.

“We do have ongoing discussions with foreign governments, including Australia, not just on refugees but all diplomatic issues,” she said.

The US speculation arose in September after Prime Minister Malcolm Turnbull attended US President Barack Obama’s refugee summit in New York, pledging an extra $130 million over three years towards “peace-building and assistance” for refugees and to make permanent the existing temporary increase in Australia’s humanitarian intake from 13,750 to 18,750, He also suggested refugees from Costa Rica, fleeing troubles in Central America, could be among them.

4 . Labor undecided

Deals notwithstanding, the government plans to introduce legislation for the proposed travel ban on refugees into parliament next week.

“Hopefully by that time Bill Shorten can get his act together and support it,” Dutton taunted this week.

The opposition is yet to decide whether it will support the proposed ban, reserving its right to see the legislation first. Shadow immigration minister Shayne Neumann suggested it wasn’t inclined.

“The idea that someone who might be reassessed as a refugee – be assessed properly under our guidelines, the migration legislation, as a refugee, be resettled in a third country, become a prominent citizen such as a doctor who wants to come here on a medical conference or a leading politician or someone who wants a cultural exchange, or simply to visit a family member on a tourist or a business visa or something of that nature – can’t come to this country on those terms and conditions after decades down the track, it seems to me to be nonsensical and ridiculous,” Neumann said.

Senior left-wing Labor frontbencher Anthony Albanese, whose faction has concerns about the ban, says the government needs to explain the reason for it.

“Beyond just appearing to be harsh to refugees,” he asks, “what is the point of that legislation?”

Opposition Leader Bill Shorten said it was designed to appease the far right but he stopped short of committing to blocking it.

While the proposed ban was not designed specifically to wedge Labor on an issue that has exposed divisions between the left and right of the party in the past, the government won’t be unhappy if that is a secondary consequence.

“If they’re serious about stopping boats and making sure that we can get people off Nauru and Manus, then they will support it,” Dutton told 3AW.

But the government has secured the enthusiastic early support of at least one other party.

One Nation Senator Pauline Hanson is in favour. In fact, she says, her party couldn’t have put it better.

This article was first published in the print edition of The Saturday Paper on Nov 5, 2016 as "Contradictions in the refugee life ban".

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Karen Middleton is The Saturday Paper’s chief political correspondent.

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