NZ citizens should fight their character cancellations from New Zealand
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 20 March 2024
I have come to the conclusion that New Zealanders who have had their subclass 444 visas cancelled in Australia on criminal grounds, should leave Australia as soon as possible in order to rebuild their lives in a favourable way during any consideration of their circumstances including during tribunal review or judicial review.
One of my early successes in this circumstance was Staffieri and Minister for Immigration and Citizenship [2008] AATA 321 where the applicant had been convicted in Australia of armed robbery and other bad things and was refused a partner visa under s501 of the Migration Act. He had returned to NZ and the case was conducted with his giving evidence by satellite video link from NZ. We were successful partly because he had undertaken steps to rehabilitate himself in NZ.
Ultimately if an NZ citizen has his or her subclass 444 visa cancelled and has left Australia, he or she can only return if granted a new subclass 444 visa on arrival in Australia.
The criteria for a ‘special category’ visa contain an exception to allow the return of persons who have had their initial visa cancellation revoked under s501CA(4).
It is quite complex, but the solution is found in s32(2)(b) & (c) of the Migration Act which as relevant reads:
Section 32 Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non-citizen:
(i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or
(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c) a person of a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
The relevant regulation is Reg 5.15A which states as relevant:
Reg 5.15A Special category visas—declared classes of New Zealand citizens
(1) For paragraph 32(2)(c) of the Act, a person is in a class of persons for whom a visa of a class other than a special category visas would be inappropriate if the person:
(a) is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and
(b) is not a health concern non-citizen; and
(c) is covered by subregulation (2) or (3).
(2)….
(3) A person is covered by this subregulation if:
(a) the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and
(b) the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and
(c) the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and
(d) the Minister has not, under subsection 501BA(2) of the Act, set aside the decision to revoke the cancellation of the visa; and
(e) since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person’s removal or deportation from Australia because of the decision to cancel the visa.
These amendments were made in 2015 and the Explanatory Statement states:
“The purpose of this amendment is to remove any impediments for a New Zealand citizen who wishes to return to New Zealand to await the outcome of their revocation request under section 501CA, and to facilitate their ability to return to Australia if they are successful in having the mandatory cancellation of their visa revoked. Previously, the definition of behaviour concern non-citizen means that a New Zealand citizen who:
has had their visa mandatorily cancelled and has sought revocation of that decision;
requests to be voluntarily removed from Australia while awaiting the outcome of their revocation request; and
is successful in having the mandatory cancellation revoked;
is ineligible to be granted a special category visa if they wish to return to Australia.”
The above does not seem to cover someone whose subclass 444 visa was cancelled under 501(2) on the basis of a criminal record and the cancellation was overturned by the AAT on discretion, although that probably would be a rare situation.
I have had cases where persons can sit in prison or detention for years while the whole review process runs its course. NZ citizens are better off spending that time in the community in NZ working and behaving and doing good things.
It all counts for the better for a person giving evidence in say the AAT from a position where they are outside in the community rather than sitting in the witness box as a person whose just been brought in from a detention centre.
Of course, during any time in NZ, the person must be on their best behaviour.
The above strategy can apply for those from other countries, although the return could be problematic. Again, rather than sit in detention the person could return to the country or origin and enhance their prospects by working and showing that their non-criminal behaviour is tested in the community.
If a person is successful in having their visa cancellation revoked, it means that cl 5001 no longer applies to that person. However, the person could face a s501 hurdle in re-applying for any other visa. For non-NZ passport holders, the situation would need to be very carefully planned and studied.
A permanent residence visa only has return entry rights from 5 years of grant. It is possible to conceive of circumstances for shorter sentences where the that 5 year period may not have expired. For most people though that 5 year period would have passed.
There is a lot of complications to even NZ passport holders leaving Australia after a visa has been cancelled on character grounds. The Aviation Transport Security Regulations 2005 may require the person to be escorted during the flight with 2 guards. This can only be avoided if the Minister acting personally gives the person a BVE. In such circumstances the person would be taken to a holding cell at an Australian airport and the BVE is granted while the person is in that cell and then the person is escorted to the door of the aircraft and allowed to board because the person is not at that moment in ‘custody’.
On return, a NZ passport holder who has had the visa cancellation set aside, should arrive with a form 956 fully signed, on a flight arriving at a capital city airport after 9am on a week day with a lawyer on standby to handle any queries from Immigration. One doesn’t want to arrive outside business hours with the risk of senior departmental officers not being available to consult.
And of course the returning New Zealander must fill in the Incoming Passenger Card confirming he or she has criminal convictions, otherwise the subclass 444 visa may be refused for giving false information.
New Zealanders are in the tricky situation if they have had sentences of more than one year in New Zealand or indeed anywhere else.
Subclass 44 visas are not granted to a ‘behaviour concern non-citizen’ which is defined in s5 of the Migration Act as follows (among other things):
“behaviour concern non-citizen means a non-citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year…..”
New Zealanders in that category can never be granted a subclass 444 visa. They need to find some other visa to use to come to Australia like a sponsored visa like a subclass 482 or even a partner visa subclass 309. However in such circumstances they would need to identify their convictions and rely on the exercise of a discretion under s501 not to refuse the visa on character grounds.
Technically such a person could also apply for a subclass 600 visitor visa again declaring the convictions.
New Zealand citizens are not eligible for the subclass 461 NZ spouse visa.
For access to my case of Staffieri go to:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2008/321.html
We discuss all of these issues in great detail at our next full day 10 CPD point workshop on Saturday 30 March 2024 which is also simulcast as a webinar.