A test of character

Imagine being deported to a country where you knew no-one. Where you had no connections. Where the moment you land, you feel like an intruder.

Ian Wightman is a 51 year old man who has lived in Australia for 50 years. Yet he is not an Australian citizen and after spending 15 months in jail, he is now being detained and likely to be deported to the United Kingdom.

Five decades in Australia including time spent in the Australian reserve forces count for naught. Locked up on Christmas Island, it’s impossible to understand what Wightman is thinking.

If I didn’t know better, I’d assume this was fiction. However fiction doesn’t repeat itself.

Take Ko Rutene. A New Zealand man living in Australia who has committed no crime. A decorated war hero who served in Afghanistan and was part of John Key’s personal protection. Rutene’s visa has been cancelled as he was a member of a motorcycle club. He is being detained in a high security prison.

This scares the shit out of me. With over 27 per cent of Australia’s population born overseas, including 1.6m people on temporary visas at any point in time, recent legislative change has created a nightmare scenario where long-term Australian residents are subject to disproportionate, draconian police-state powers.

In October 2014, amendments to the Migration Act introduced mandatory visa cancellation for non-citizens who had spent 12 months or more in jail. Under Section 501 of the Act, applicants visas are cancelled and then as they do not hold a valid visa, subject to mandatory detention. There are no exemptions and the only avenue is one opportunity for the Immigration Minister to overturn the decision. This process is not reviewable, there are no second chances.

This is a black and white approach to a very murky area. While there are undoubted convicted criminals who many would support the detention and deportation of, there are also those mixed up in the arbitrary nature of these laws. There are those, like Ian Wightman, who have a lifetime connection to Australia and amongst the strongest moral claims to remain. Spending 98 per cent of your life in a country – regardless of the crime you commit – creates bonds that should be more difficult to break. There are those, like Ko Rutene, whose life has been upended without due process.

In today’s Fairfax papers, the New Zealand Interior Minister called this a ‘frontier approach to justice‘. It is hard to find fault with this assessment. We have created a system without discretion where these individual stories will continue to arise. Migration and residency are not black and white but subject to temporal and social norms and experiences. People – particularly migrants – do not live homogenous lives where the law can easily define right from wrong. This is why there are entire sections of migration law which rest heavily on discretion. This is why there are multiple institutions dedicated to due process and appeal.

Today this seems almost foreign. With visa cancellations from character grounds up over 500 per cent in the past 12 months, it is time to question why these changes occurred in the first place and walk them back. Reading the google alerts I set myself each morning has become more than a chore it once was. There is a sense of despair. While there may be larger issues going on in the world of migration right now, if we cannot get this basic stuff right, what hope is there for genuinely difficult questions?

I had no idea these laws were being passed last year and I should have paid closer attention. For this I apologise. Even a little bit more attention shined at the time may have led to a different outcome. Perhaps naively, I like to think those who did consider them did not expect these outcomes and the opportunity exists to redress such unfair treatment of people who have given so much to Australian life.

9 thoughts on “A test of character

  1. They are not nice friendly people. To get a 12 month jail term you have done some serious crimes not a petty criminal. They have committed serious crimes or in the case of the bikie it is known they are the number importer of drugs. Looks at the 8 bikies in Perth who got jailed this week, so are they just nice people to?

    1. Anonymous, the 51 year old man had a 15 month jail term for a scrub fire. I don’t condone lighting a fire deliberately however looking at his history and life in Australia holistically, I find it very hard to agree he should be deported after living in Australia for five decades. I don’t disagree some of these people have committed serious offenses however this is more difficult than simply lots of bad guys.

  2. I don’t think you were the only one who didn’t quite grasp the implications at first Henry. I remember this as LNP policy going into the 2013 election, but must have assumed it would not be implemented in that form, or at least didn’t stop to think about how many New Zealanders it would sweep up. The New Zealand Government clearly seems to have been somewhat caught out on that front too. But it had bipartisan support, with only the Greens voicing opposition. Those who designed the changes must have known exactly that this would be the outcome – there were, after all, submissions on the bill that told them. The ALP support – I’m thinking of the speeches by Kim Carr and Michelle Rowland – really remind me of the speeches made by the likes of Wayne Swan and Chris Evans on the 2001 social security law changes for New Zealanders. That is, they really just went along with it, and I’m hoping for something different the next time the ALP is in power. Maybe I am naive too?

    1. Hi Paul. These types of unintended consequences are all too frequent in migration policy. I’m not sure what will occur in the near future but I wouldn’t bet my (rented) house on any policy change at this stage. Only when either the current government or a future ALP government cannot see any alternative except walking it back, would such a thing occur. There is very little political or policy capital in these areas of law. Hopefully I’m wrong.

  3. Coupled with the fact that the vast majority of NZ-born and Pasifika-born arriving post-2001 have effectively been excluded from becoming Australian citizens, then it is absolutely guaranteed that this nexus between the 2001 changes to citizenship law and these draconian deportation laws will disproportionately affect (and thereby racially discriminate against) these people.

    We can possibly expect to see the nature of this discrimination worsen over time as children who have been forced into crime because they are denied all government assistance are deported to a country the do not remember for petty crimes committed in order to survive.

    1. Hi David. Yes, I agree there is a serious disproportionate impact against post-2001 s/c 444 visa holders. It’s disturbing to think how many of these legal changes are now being combined in an environment where the chances of successfully settling down and living a normal life are reducing quickly.

  4. Well, when people have their backs against the wall there is one particular law that can be used to override the Migration Act and the Minister’s powers. It will be interesting to see if and when it is engaged…

  5. Also, I recall that when Labor gained power in 2007 the newly-appointed Immigration Minister Chris Evans made a very public statement about his concerns with the operation of s. 501 and that he would not be ‘playing God’ by using it.

    So what changed in the meantime one must ask? Did hoards of despicable foreign criminals suddenly descend upon OZ? Or is this yet another example of politicians demonising a defenseless minority for their own political gain…

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