New Zealander and visa cancellations

NZ visa cancellation appeals

On Tuesday 9 December 2015 the Immigration Minister announced the following about New Zealand visa cancellations:

No individual returned to New Zealand is denied the right to continue appeals processing already underway in relation to the cancellation of their visa. Cases have already occurred where New Zealand citizens have returned to Australia after receiving an appeal decision in their favour while they were back in New Zealand. Under Section 501CA(4) of the Migration Act the Minister may revoke the original cancellation decision if:

• The person makes representations in accordance with the invitation

• The Minister is satisfied:

  • that the person passes the character test; or

  • that there is another reason why the original decision should be revoked.

New Zealander Loses Challenge to SC 444 (Kiwi) Visa Cancellation
The issue of Kiwis and visas for Australia has received lot of media lately, especially in the cancellation of visas. A recent case was heard at the Federal Court (23 June 2015) in which a New Zealand citizen unsuccessfully tried to have the cancellation of his visa overturned. The case was Rangiwai v Minister for Immigration and Border Protection (2015) FCA 621. The visa holder was able initially to have a decision made in his favour in the AAT after a cancellation at the Department, only to have that cancellation re-instated by the Minister on “national interest” grounds. The application for judicial review of the Minister’s decision was then dismissed by the court.

The visa holder was convicted in May 2012 of a sexual offence, “indecent treatment of a child under 16 and under care” and the victim was the visa holder’s niece. Although the visa holder had no previous criminal record, he was sentenced to 18 months prison. He actually served 6 months. Shortly after his release, his visa was cancelled by the Department.

The matters taken into account by the AAT included the fact that the offence involved a sexual based crime, and that these are very serious; the victim was 14 years, and that crimes committed against vulnerable members of the community are serious, and that the victim had been seriously impacted by the incident. The Tribunal considered that the sentence that had been imposed on the visa holder was “at the lower end of the spectrum”; the visa holder had not committed any other criminal offences; that the visa holder had a good work record in Australia; and that a psychologist who had interviewed the visa holder prepared a report stating the risks to the Australian community were not high. On the review the case, the Tribunal decided it was appropriate to set aside the Department decision to cancel the visa.
The Minister took a different view, and set aside the decision of the Tribunal and restored the visa cancellation. The Minister’s view was that the cancellation was “in the national interest” because the offence was of a sexual nature, had been committed against a minor, and was “abhorrent”.

In the Federal Court, the visa holder challenged the Minister’s decision on the basis it was “a disproportionate response to the facts” and was “unreasonable”. The Court did not agree and the visa remained cancelled.
What does this tell us: A very different view is being taken now of New Zealand citizens in Australia on the very favourable conditions of the SC 444 visa they get on arrival. It is becoming common place that Kiwis arriving here are stopped at the airport if they have a criminal record with a sentence of 12 months or longer, regardless how long they were actually in prison. They may be able to apply for a different visa to return but the SC 444 visa has a strict provision that people with the 12 month plus criminal record that prevents an affected Kiwi EVER getting that visa.

In addition, Kiwis in Australia who have past criminal records at this level are now at risk of being caught by this law and being sent home.
If you feel at risk you should seek immediate help to see if there is a way to protect your right to live in Australia.

Referenced to the Migration Alliance website.