Under the amended section 501 of the Migration Act, the federal government has the power to cancel or refuse visas and deport people who fail a ‘character test’ – even those who assumed they were Australian citizens. By Santilla Chingaipe.

Who are the people failing Australia’s visa ‘character test’?

Sideli Tauali’i appearing on a podcast this year.
Sideli Tauali’i appearing on a podcast this year.
Credit: Supplied

Sideli Tauali’i is matter-of-fact when he talks about his criminal past. He doesn’t shy away from what he did. “I grew up in Ringwood and lived many years in Ringwood, worked all my life until I got involved with outlaw motorcycle clubs.”

Tauali’i was more than involved. He became president of three different clubs – The Rebels, Bandidos and Hells Angels.

In 2009, alongside two others, he was charged with armed robbery, aggravated burglary and intentionally causing serious injury. In Tauali’i’s words, “for trying to murder a member of the Bandidos”.

It wasn’t until his trial in 2013, where he was sentenced to eight years in prison, that the father of 11 learnt that he wasn’t an Australian citizen. “I always thought Australian citizen was a permanent resident. I questioned that, and asked what was the difference?”

Tauali’i was born in Tonga and came to Australia as a baby with his parents. Although his parents would later become citizens, he never did and assumed that he automatically was a citizen.

While serving his sentence, he was given his deportation papers. “There was a warning notice that came in 2013 or 2014 and it was signed off by Scott Morrison saying, ‘Your visa could be terminated.’ And that’s when I realised: ‘Hang on a minute, I’m falling into this class of 501s.’ ”

So-called “501s” are people who have had their visa cancelled under section 501 of the Migration Act. Since making amendments to the legislation in 2014, the federal government has had the power to cancel or refuse visas of non-citizens who fail a “character test” – a broad definition that includes everything from having a substantial criminal record to escaping immigration detention to being suspected of engaging in future “unacceptable conduct”. A conviction of more than 12 months is considered a “serious offence”.

According to the Department of Home Affairs, between July 2020 and July 2021, the government cancelled 946 visas and refused 785 visa applications under the section 501 provision.

Much of the focus has been on the large number of New Zealanders who’ve been deported because of these changes, leading to diplomatic tensions between the close allies. But for citizens of other nations, being served deportation orders doesn’t necessarily mean they’ll be removed from Australia. Instead, they face a period of prolonged or indefinite detention.

Tauali’i is one of those. After serving his sentence, he has spent eight months and counting in the Melbourne Immigration Transit Accommodation in the northern suburbs. He tells The Saturday Paper he’s unsure if he’ll be deported because, “Tonga has said they are not accepting anyone.”

Henrietta McNeill researches criminal deportations to the Pacific from the United States, New Zealand and Australia. The Australian National University academic says “it is almost impossible to refuse entry of people who have citizenship of that state”.

However, McNeill says, the pandemic has presented challenges. “Deportations to Pacific states have not halted but definitely decreased, which has meant that a lot more people are being held either in immigration detention or in prison for longer periods of time awaiting deportation. The Tongan borders are generally not open to anyone.”

McNeill says once the borders reopen there will be a “large influx of deportees from the deporting nations – Australia, New Zealand and the US – going to these Pacific Island countries. And it’s likely to be unmanageable because of the numbers of … people that have been waiting deportation.”

Although Tauali’i visited Tonga in the late 1980s, he says “all the people that I know are dead or live overseas”.

McNeill believes there are effects for both returnees and receiving states. “There are different cultural and linguistic challenges around reintegration, and social challenges, and there have been calls from Pacific Islands states for deporting states to do more prior to people’s deportations because there are so many challenges particularly in Pacific states that are often underresourced to manage these types of challenges.”

McNeill argues Australia could do more to support people before they are deported. “Particularly in Australia’s case, unfortunately deportees spend a long period of time in immigration detention and there is an opportunity there to help, particularly with language skills”.

For people such as Tauali’i who are awaiting deportation, life in immigration detention is difficult – worse than prison. “This place is designed to break you so that you can sign to go. And that happens too in a lot of cases – guys say, ‘I’ve had enough, I’m going because I wish I was back in jail.’ In jail, we had more freedom … and in prison living conditions are far better.”

In July, the president of the Australian Human Rights Commission, Rosalind Croucher, published a report that raised concerns about the lack of safeguards to prevent the arbitrary detention of people waiting to be deported.

Croucher carried out an investigation after complaints were made by 11 people who’d had their visas cancelled or refused and who alleged human rights breaches during their time in detention.

Croucher found there had been a significant increase in visa cancellations on character grounds, and that while “the total number of people in immigration detention has decreased, the number of people in immigration detention as a result of a visa cancellation has increased”.

She also found that “people who have had their visas cancelled or refused under [section] 501 are at risk of prolonged detention while their status is resolved – for example, while they seek review of the decision to refuse or cancel their visa, while travel documents are arranged, or while a claim for a Protection Visa is assessed.”

She concluded that it was “therefore critical that the detention review practices and policies of the Department of Home Affairs protect the Australian community while also safeguarding the human rights of detainees – in particular the right to be free from arbitrary detention”.

The report made eight recommendations, including the establishment of an independent review process for long-term detainees. In its response to the report, the Department of Home Affairs rejected the assertion that its detention review framework didn’t adequately safeguard against arbitrary detention.

“The department does conduct individualised risk assessments and has a framework in place for regular reviews, escalation and referral points to ensure that people are detained in the most appropriate placement to manage their health and welfare, and to manage the resolution of their immigration status,” it said. “The department maintains that review mechanisms regularly consider the necessity of detention and where appropriate, identify alternate means of detention or the grant of a visa.”

While Tauali’i faces a prolonged period in detention awaiting the outcome of an appeal, he says he has turned his life around and after “walking away from the club, family members walked away, friends, basically [I] lost everything and just one day I gave myself to Christ”.

He says he’s not looking for sympathy. However, he says the situation he is in is unfair – his detention will be indefinite, until Australia can force Tonga to take him back. “I never murdered anyone, first of all,” he says.

“Second of all, I’ve served my time – I did over eight years. And what they’ve given me now is a life sentence. To be separated from my children, grandchildren – that’s the difference. I paid my debt to society. I’m not asking for people to show me any sympathy, but I’m just saying this is supposed to be the country of the fair go. Where’s the fair go?”

This article was first published in the print edition of The Saturday Paper on December 11, 2021 as "Route 501".

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Santilla Chingaipe is a journalist and documentary filmmaker.

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