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Dozens of ‘501s’ overturn deportations from Australia to NZ – daughter’s grave factor for one

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New Zealand passport-holders can have their visas to be in Australia revoked on “character grounds” under Section 501 of the Australian Migration Act. Photo / Supplied

A woman who would be prevented from visiting her daughter’s grave if she was deported to New Zealand is one of dozens of “501s” managing to overturn being kicked out of Australia.

Figures provided to Open Justice show 38 New Zealanders ordered to leave Australia convinced a tribunal to let them stay in the year to June 2021.

Since then, a further 23 have been successful in stopping their deportations under Section 501 of the Australian Migration Act, which can be triggered when a person is sent to jail for 12 months or longer.

Deportees under that provision of the Act have taken to calling themselves “501s”.

On Friday Prime Minister Jacinda Ardern met with Australia’s new leader Anthony Albanese to push for changes to the law. Albanese said after the meeting that the 501 policy would stay, although he promised to “work through” implementation issues with New Zealand.

One successful appeal was made by a woman in Adelaide who moved to Australia at the age of 7, was sexually abused while in foster care, and whose life since was blighted by drug addiction and domestic violence.

She was due to be deported back to New Zealand after stabbing a boyfriend and being sentenced to four years in prison but managed to convince the Australian Administrative Appeals Tribunal to allow her to stay.

There were several factors weighing the decision in her favour, including an acknowledgment that being sent to New Zealand would prevent her from visiting the grave of her daughter who died by suicide at 16.

The tribunal’s figures show 192 New Zealanders have applied to have their Section 501 deportations revoked since July 2020.

Only 61 were allowed to stay, while a handful of other cases were rejected by the tribunal or withdrawn by the applicant before they got to a hearing.

In all, more than 2500 people with New Zealand citizenship have been sent back from Australia since 2015, including some who have lived across the Tasman for many years and who have few connections to their country of origin.

The issue has caused friction between successive Australian and New Zealand governments.

In the case of the 42-year-old woman in Adelaide, whose identity was not disclosed, appeals tribunal senior member Brenton Illingworth found her offending was directly related to her personal circumstances, including being sexually abused by the adult son-in-law of a foster carer while she was a ward of the Queensland state government.

She ran away to Perth at the age of 15 and did not return to Queensland while she was still a minor, fearing she would be placed back into care.

By the age of 17, she had given birth to her first child, a girl, who would take her own life after being bullied at school 16 years later.

The woman later had two sons. One is now an adult and she has no contact. The second is in foster care and she has regular contact with him.

The woman racked up a large number of dishonesty offences after turning to alcohol and drugs, and at one point her drug habit was costing her $200 a day.

During the past 20 years she has appeared before the courts for dishonesty, violence, domestic violence, wilful damage, and drug offending.

She was jailed for four years in 2021 for wounding with intent to cause grievous bodily harm after she “went crazy” and attacked her de facto partner, who had been violent toward her previously, when he tried to move out of their house.

She stabbed him with a knife, causing a 10-15cm cut to his arm, and a wound nearly 2cm deep to his chest, partially collapsing a lung.

In deciding to overturn her deportation, the tribunal considered a number of factors including her convictions, the protection of the Australian community, her family violence history, the effect of deportation on her, her links to the Australian community, the interests of the children in her family, and her inability to visit her daughter’s grave if removed to New Zealand.

It found the balance of these things were in her favour and merited the cancellation of her deportation.

Another recent success story in preventing deportation was a 34-year-old New Zealander who moved to Australia aged 14 and has lived there all his adult life.

He received a 12-month prison sentence for assault and wilful damage, just sufficient to fail the Section 501 “character test”.

The Brisbane resident, with two other men, harassed and then assaulted a driver who had braked hard in front of his car to avoid wildlife on the road.

The tribunal heard his partner had suffered a miscarriage two days earlier.

It said while this did not excuse his actions it “had an extremely detrimental effect on the applicant’s emotional state, which in turn led to extraordinary out-of-character behaviour”.

Before then, apart from “continuing disregard for rules of the road”, the Brisbane man had an unblemished criminal record. He also had an excellent work history.

The tribunal determined there was “virtually no likelihood” the man would reoffend, and being sent back to New Zealand would not be in the best interests of his two Australian children.

It reversed his deportation.

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