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Under sections 501 and 116 of the Migration Act, visas can be cancelled or refused under a broad ‘character test’. This legislation is being used to detain and deport immigrants, and is the subject of a proposed class action against the Australian government for alleged human rights breaches. By Santilla Chingaipe.

Class action planned over ‘character’ test for deportations

NZ Foreign Affairs Minister Nanaia Mahuta with Marise Payne in Wellington.
NZ Foreign Affairs Minister Nanaia Mahuta with Marise Payne in Wellington.
Credit: Hagen Hopkins / Getty Images

Filipa Payne was travelling around Australia in 2015 on a hīkoi, “which is Māori terminology for a moving protest”.

The purpose of the trip was to visit detention centres and prisons “holding people under immigration matters”. What she witnessed left an indelible mark.

“I saw grown men, huge in stature, and, some would say, huge in ego, completely at the bottom of any sort of system,” she says. “Completely dehumanised and their families completely abandoned in the country they called home.”

The New Zealander describes the experience of being in those detention centres as “life-changing”. It prompted her to form an advocacy group to support people through the removal process from Australia to their subsequent country.

“I am here to be of help and assistance while in detention – a process that is completely overwhelming, demoralising and a system that is designed to break people.”

Route 501 Advocacy and Support lobbies on behalf of so-called 501s – people who have had their visas 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”.

Addressing senate estimates in November, the acting first assistant secretary of Home Affairs, Justine Jones, defined her department’s interpretation of the legislation, saying “it would be about whether the conviction met the character test. So, for mandatory cancellation, the person has to be currently serving a prison sentence and have, or at any point in time have had, a 12-month sentence or more or child sexual offences. What that means in practice is, for example, if somebody went to prison for a relatively minor drug offence, with a fairly short sentence, but in their prior criminal history they had a sentence of 12 months or more, they would fail the mandatory cancellation provisions and the character test.”

Jones revealed that since the amendments were made to the legislation in 2014, “the total number of 501 cancellations in that period since December 11, 2014, as at August 31, is 6741. That would include mandatory cancellations and discretionary cancellations.”

Filipa Payne says the cancellations are likely much higher because of the amendments made to another provision of the Migration Act, Section 116. “Under section 116, you just have to be charged with a crime,” she says. “You don’t even have the right to go in front of a judicial system before you’re placed in a detention centre.”

Under this amendment, the Immigration and Home Affairs ministers can cancel a visa if “the presence of the visa holder in Australia is ... may be, or might be, a risk to the health, safety or good order of the Australian community or a segment of it”. It was this provision that the federal government used to cancel the visa of Serbian tennis player Novak Djokovic a few weeks ago.

While Djokovic temporarily spent time in immigration detention, others who’ve had their visas cancelled have not been so fortunate. Shayne Forrest was born in New Zealand before immigrating to Australia at the age of 32. He briefly settled in Karratha, in the Pilbara region of Western Australia.

“I enjoyed it over there,” he says. “At that time, I didn’t have a drug habit. I was working – I was making good money.”

Two years later, however, he started using drugs. “I’d never touched drugs before and I started to use a bit of meth. I had a motorbike accident in 1997 in New Zealand and I broke my back in two places, so I was always in excruciating pain. When I got to Australia, after a couple of years, someone introduced me to meth, which I used for pain relief, motivation et cetera, not realising that I’d get addicted to it and which I did. Big-time addiction.”

Forrest started selling drugs and was regularly in trouble with the law. “I was convicted of trafficking commercial amounts and just drug sales that goes with it: guns, weapons, assaults. Just being a general ratbag, really.”

He spent about 13 years in prison. While serving a “third or fourth” sentence in 2012, the laws changed and his visa was cancelled. After successfully appealing the decision, saying he would enter a drug rehabilitation facility, he fell back into addiction. He was sentenced to prison again in 2017 and his visa was cancelled again. After serving his time, he was sent to immigration detention at Yongah Hill in 2020, where he was issued with deportation papers.

It was while in immigration detention that Forrest learnt he was dealing with health issues. He says he was denied adequate medical treatment when transferred to Christmas Island before being finally deported. Shortly after arriving in New Zealand, he discovered he had prostate cancer and the prognosis was not good. He has been given two years to live. “If I had have made it to a urologist earlier than I have – which is not my fault – I would have been okay. Instead, I’m sorry, it’s now mutated into four different cancers.”

Filipa Payne believes Australia is violating human rights obligations with the deportations of people who’ve had their visas cancelled. Her organisation is bringing a class action on behalf of people and families caught up in Australia’s capricious immigration system.

“There’ll be seven or eight floating parts to the class action. It won’t just be one lodgement,” she says. “The parts that will be lodged against the Australian government will be lodged in the correct state. There’ll be parts lodged against the New Zealand government and our court system, and we also believe that they will have merit to be lodged against Serco, the providers, and government entities at the United Nations.”

Payne says they are “forming a road map” of what, where and against whom the lodgement will be made, and hopes that the measure brings about accountability.

Payne adds that the goal is “to hold the Australian government accountable for the human rights breaches and brutal implementation of section 501 and section 116 of the Migration Act. Secondly, we would like to see compassionate grounds of re-entry for people who have been removed already and, thirdly, we believe that there should be no indefinite detention.”

Last November, while meeting with Foreign Minister Marise Payne in the Blue Mountains, New Zealand Foreign Minister Nanaia Mahuta raised her concerns about the policy. “I have continued to raise the issue of Australia’s deportation policy,” she said.

Payne defended Australia’s position on the matter, which former Home Affairs minister Peter Dutton described as “taking the trash out”.

“We have had very frank discussions, I have listened to those very carefully,” Payne said, adding: “Our policy has not changed in terms of the approach we take to those non-citizens who commit crimes in our country that applies to the citizens of any country.”

While the diplomatic impasse continues, people such as Shayne Forrest, who feel Australia is home, are quietly deported. “We’re all human, we all make mistakes,” he says. “I understand that people look down their nose at some of us. There’s people in every family that have a problem somewhere. Instead of banishing us, why don’t they stop and try and rehabilitate us to help us or do something? There’s always a reason why someone slips down the ladder. Always.”

This piece was updated on February 8, 2022, to correct an error. The quotes attributed to Katherine Jones should have been attributed to Justine Jones, acting first assistant secretary of Home Affairs.

This article was first published in the print edition of The Saturday Paper on February 5, 2022 as "Test of character".

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Santilla Chingaipe is a journalist and documentary filmmaker.

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