We’re not just friends, we’re family. That’s what we’ve been told, anyway.
But Australia - which is supposed to be like New Zealand’s brother - keeps giving us its biggest problems in the form of hundreds of deportees who have spent years building criminal records in their country.
Successive New Zealand governments have protested. And successive Australian governments have ratcheted up the “corrosive” deportation policy.
Blair Ensor and Andrea Vance investigate the death of a once-familial bond.
It was 5am when Anya Weti-Safwan woke to the sound of someone banging loudly on her door.
A long-time drug addict, and prolific shoplifter, Weti-Safwan assumed it was the police. She wasn’t worried: since October 2016, she’d turned her life around.
A spell in Sydney’s notorious Villawood Immigration Detention Centre, with the threat of deportation hanging over her, scared the 34-year-old straight. She’d successfully appealed the decision to cancel her visa.
On September 11, 2017, still in her pyjamas, she was greeted by elite police from a specialist group known as the ‘Raptor Squad’. They said her visa had been cancelled, pushed her against the wall and placed her in handcuffs.
Weti-Safwan’s mind raced: “What the f... is going on?”
The mother-of-one, who’d lived in Australia for more than three decades, had become a target of sweeping and unchecked powers vested in Cabinet enforcer Peter Dutton to refuse or cancel visas, and to detain or re-detain non-citizens without warning.
These discretionary powers have attracted widespread international criticism, as unjust and likely to break international human rights obligations.
The New Zealand Government has been a vociferous objector, as the policy disproportionately affects Kiwis.
But the Australian Government has continued unabashed, and since the Scott Morrison-led Liberal Party returned to office in May, it has been made clear there will be no easing of the settings.
In a defiant two-finger gesture to their Wellington counterparts, the Australian Government is set to widen the net of those who can be deported, with new law changes currently before the Parliament.
Of most concern to the Beehive are provisions that make it easier to deport minors.
“The Australian Government has behaved arrogantly. I wonder why the New Zealand Government remains so friendly with [them] given the way Australia treats it in relation to this issue,”
Leading immigration lawyer Greg Barns says.
“Sadly, when it comes to Australian voters, in far too many cases fear and racism rule and kicking Kiwis is fashionable,”
Justice Minister Andrew Little agrees there is no appetite to soften the rules, because of widespread public support for punitive border security and detention policies.
“There is not a lot of political cachet for any [Australian] MP in this,” Little says.
“A lot of these laws are passing through on a reasonably bi-partisan basis. I can't think of an Australian politician who has stood up and really taken the cudgel to this stuff on behalf of New Zealanders.”
Dutton, the architect of the forced deportation policy, blindsided the New Zealand Government just two days before Christmas 2014.
He assumed the immigration portfolio, from Scott Morrison, in a Cabinet reshuffle on December 21, and swiftly implemented the changes.
The country’s 60-year-old migration laws were amended to impose a character test on visa applicants and non-citizens. Cancellation of a visa was mandatory if an individual failed the character test because they had a substantial criminal record, defined as a sentence of imprisonment of 12 months or more.
Although the changes kicked in immediately, it took almost a year for the first ‘501s’ to arrive.
Prior to 2015, between 50-85 Kiwis were deported from Australia each year. New Zealand deports one to three Aussies each year, and only if they have been in the country less than a decade
Twelve men came on a charter flight from Melbourne to Auckland on November 19. Dutton celebrated their removal to Australian media saying: “They’re off our soil and they’re back in New Zealand.”
Officials and politicians had worked tirelessly to prepare for the arrival.
Then-Prime Minister John Key lobbied his opposite number Tony Abbott at formal talks, followed by lunch and a one-day cricket match at Auckland’s Eden Park in Auckland in February.
New Zealand wanted greater advance warning of when Australia was deporting criminals, so they could establish risk management and parole-like conditions for ‘at risk’ deportees.
Meanwhile, the number of Kiwis in detention centres - including Christmas Island, 2600km off the coast of Western Australia - soared to around 300.
Malcolm Turnbull rolled Abbott and in October met Key. In the wood-panelled rooms of Auckland’s Government House, the 501s dominated conversation.
Turnbull was insistent Kiwis would get no special dispensation. But the two premiers had a ‘matey’ relationship, and the Liberal Party leader had to give Key a win.
The pair announced Kiwis stuck in detention centres could fly home while they appealed their visa revocations. Turnbull promised to clear a backlog and fast track appeals.
National’s Justice Minister Amy Adams was tasked with dealing with the returning offenders. Legislation passed through Parliament, under urgency, to set up a strict monitoring regime.
The supervision had an immediate impact, with re-offending rates among deportees dropping from 58 per cent before the legislation was passed in November 2015, to 38 per cent in the period from November 2015 to March 2018. It is currently just over 46 per cent.
The following February, Key called on Turnbull in Sydney. It was an election year, and the deportation policy had proved popular in Australia, but Turnbull offered a concession. He announced an easier route to citizenship for Kiwis.
It had been a sticking point in the relationship since immigration rules had tightened in 2001.
A year later, he overturned the changes. And the relationship continued to slide when Jacinda Ardern’s Labour Party formed a minority government in October 2017.
She chose Australia for her first overseas trip, travelling to Sydney to meet Turnbull over brunch just ten days after taking office. The stakes for this meeting were high.
Ardern would later describe it as “challenging”. Turnbull rebuffed her offer to accept 150 refugees from Manus Island, where 600 detainees had barricaded themselves inside an offshore detention centre. No progress was made on deportations.
The Department of Prime Minister and Cabinet regularly briefed Ardern’s office on controversial or tricky deportation cases.
In February, a briefing contained a warning: a parliamentary Joint Committee had recommended migration laws be changed to allow for the removal of under-18s in a report titled: 'No one teaches you to become an Australian'. Turnbull’s Government was considering the idea.
Ardern was back in Sydney in March, for dinner and an hour of formal talks with Turnbull.
She “made a point of registering my Government’s ongoing concerns” about the “increasing deportations,” an April Cabinet minute notes.
Foreign Affairs Minister Winston Peters also met with his then-opposite Julie Bishop, at a Waiheke Island vineyard.
Their entreaties made no impact. By May 2018, New Zealand officials were alarmed by two “relatively new aspects” of the policy.
“We are seeing an increasing use of removals on the basis of Ministerial discretion, and increased willingness to consider the deportation of young persons,” diplomats from the Ministry of Foreign Affairs (MFAT) Australia division wrote to Peters. The briefing went to seven other ministers, including Ardern.
As well as section 501, the Migration Act gave Dutton powers to cancel the visas of those with lesser criminal records, if he considered there was a risk to the community or an individual.
Unlike section 501 cancellations, he didn’t have to consider any connections to Australia under section 116.
Officials noted Dutton was “ramping up” use of section 116: between 2017 and 2019 there would be a 400 per cent rise in the cancellation of visas under section 116, for offences that didn’t meet the 501 threshold.
A Police briefing around the same time warns the flow of deportations “shows no sign of slowing” and “new issues are emerging.”
In June, Wellington advisors became aware of a teenager who was facing deportation on those grounds.
Ardern called a crisis meeting for June 21, which would turn out to be the day her daughter Neve was born.
Peters led the discussions with Little, Police Minister Stuart Nash, Corrections Minister Kelvin Davis and Immigration Minister Iain Lees-Galloway.
Little and Peters publicly took up the 17-year-old’s case, appearing on an Australian current affairs show.
There was a “venal, political strain” to the policy, Little said. Peters, at the time acting PM, accused Australia of breaching the UN Convention on the Rights of the Child.
Their combative language drew attention and Dutton hit back, suggesting Kiwis were freeloading on efforts to deter ‘boat people’.
“New Zealand don’t contribute really anything to the defence effort … I hope that Andrew Little reflects a little more on the relationship between Australia and New Zealand where we do a lot of the heavy lifting,”
Greg Barns, of the Australian Lawyers Alliance, represented the young man, who was removed from Sydney and placed in a Melbourne adult detention centre. He’d lived in Australia since the age of ten.
“Even some of those working in the detention centre thought he shouldn’t be there . . . [they] were appalled.
“The impact is horrific. Immigration detention has an appalling track record in Australia of human rights abuses and is grossly inadequate care for children. You are putting a young person in a very hostile and dangerous environment, removing them from their families with the threat of sending them back to New Zealand where they may have no family.”
The deportation was eventually overturned by the Administrative Appeals Tribunal, the body that hears visa cancellation appeals.
“The New Zealand Government is right to be concerned,” Barns says. “Peter Dutton has misused and abused his revocation of visa powers and the fact that a person is a minor doesn’t seem to concern him.”
The return of under-18s presented the New Zealand Government with a new headache.
Legally, minors cannot not be subject to the adult supervision regime established in 2015. Officials, led by Oranga Tamariki, began working on an ‘inter departmental plan’ to handle this new problem.
By late August, Australia had a new Prime Minister, Scott Morrison, and New Zealand had a new problem: the proposed Migration Amendment (Strengthening the Character Test) Bill 2018.
Australian immigration minister David Coleman introduced the bill, after anecdotal reports by some police forces that judges had expressly reduced sentences to avoid triggering the criminal record threshold for mandatory visa cancellation.
The bill makes specific grounds for not differentiating between adults and under-18s.
The New Zealand High Commission in Canberra began immediately lobbying ministers and senior mandarins.
High Commissioner Annette King, a former police minister, appeared before a Senate committee inquiry to register concerns.
She said:“Australia has responsibilities for young people who grow up in Australia and are products of Australian society … the Bill would make an already bad situation worse by exacerbating the imbalance in deportation policy between Australia and New Zealand.”
The new laws “would place an increased burden on the New Zealand Government and individual New Zealand communities to rehabilitate Australian-raised offenders”.
The vast majority of public submissions opposed the bill, and included submissions from the Law Council of Australia, the Australian Human Rights Commission, the United Nations High Commissioner for Refugees and Australian Lawyers for Human Rights.
However, the committee recommended the bill pass and in September, it received a second reading in the House of Representatives.
At their annual talks, held at Government House in Auckland in February, a clearly frustrated Ardern was blunt with Morrison.
"In my view this issue has become corrosive in our relationship over time,” she said.
Robert Ayson, Professor of Strategic Studies at Victoria University of Wellington, says her language was “fairly direct and a sign that this is a difficulty.”
“The Ardern Government are caught between two things. Firstly, how important that relationship is, even more so in a period of international flux.
“But, they also realise that for domestic political reasons they need to show that on the deportation issue they are not going to accept everything that Canberra does. They must raise it publicly because the electorate expects it.”
It will be difficult to resolve because there is no appetite to soften the policy in Australia. But “deep connections” still remain between the two countries in other areas, particularly defence, customs and the economic relationship.
Little says the New Zealand Government will continue to protest.
“I most recently said to Peter Dutton … we are not going to let this go, because we can't. People are being very detrimentally affected by it.
“Every New Zealand minister meeting a counterpart is expected to raise this issue because it is wrong.”
One particular area of concern is the lack of appeal avenues for Kiwis.
“I know people who have come back and feel like they have been pushed to the bottom of the queue.
“I know of others who, even if their appeal is successful, when they come back, they are going to be saddled with a huge bill for the costs associated with their deportation.”
Some have been saved from deportation by appealing the Government’s decision at the Administrative Appeals Tribunal (AAT).
However, the Minister for Home Affairs has personal powers to set aside AAT decisions. Decisions made by ministers personally cannot be reviewed in the AAT, but may still be subject to judicial review.
It’s a hard road. Around 80 per cent of appeals to the AAT are either thrown out or affirm the Government’s decision.
Barnes says the Government has stacked the tribunal with “politically friendly appointees”.
“Those members of the AAT tribunal who have opposed [Dutton] and overturned his decisions often find their terms are not renewed.
“And, [the Government] has appointed a large number of people from the Liberal and coalition parties to AAT appointments, including ex-Liberal MPs. So, they have stacked this tribunal, and sought to curb its independence by appointing friendly, rubber-stamping individuals.”
Anya Weti-Safwan is one of the 20 per cent who beat the system.
Now 37, she only briefly knew life in New Zealand.
Born in Waikato Hospital, her family moved to Australia when she was three years old. Troubled by her parents’ marriage breakdown, teenaged Weti-Safwan rebelled and became a heavy user of cannabis. She later turned to heroin.
Her rap sheet records her first convictions - possession of prohibited drugs, illegal car use, offensive language and unlawful entry - in February 1997, aged 15.
Over the next 18 years she appeared in court for sentencing 17 times and did at least six stints in prison.
Many of Weti-Safwan’s convictions were for shoplifting and theft - crimes committed to feed her drug addiction. She was never charged with any violence offences.
In February 2005, Weti-Safwan was threatened with deportation. She continued to offend and 18 months later, her visa was cancelled.
She spent nearly three years in Villawood but was released in 2009 after ministerial intervention.
In detention she met her husband, a Lebanese asylum seeker who was later granted a visa. They married, behind the wire, in 2008.
Weti-Safwan’s offending didn’t stop after she was released: her record lists convictions in 2010, 2013, 2014 and 2015. Again, she was warned that her immigration status was in jeopardy.
The birth of her daughter in 2012 was one factor that saved her from deportation.
Two years later she hit “rock bottom” when her child was removed from her care. Another jail sentence, this time 13 months for shoplifting, saw her visa cancelled again.
She appealed to the AAT.
Weti-Safwan has a “substantial criminal record” which meant she failed the character test.
The tribunal, therefore, had to consider if there was another reason to overturn the decision.
At a hearing in September 2016, Weti-Safwan pledged to stay off drugs and turn her life around so that she could be reunited with her daughter.
The family would be torn apart. Her husband’s criminal record would likely prevent him from entering New Zealand.
The tribunal ruled Weti-Safwan should get a final chance, reinstating her visa. She was immediately freed.
Weti-Safwan steered clear of trouble and began working for the family business - repairing and selling second-hand lawn mowers and chainsaws.
“For the first time in 25 years I actually did the right thing,” she says. “Everything was back to normal.”
Dutton did not agree. He judged the cancellation of her visa was in the “national interest” and overturned the AAT decision in April 2017.
“Although I note that Ms Weti-Safwan’s offending may be considered relatively minor when each offence is considered individually, I find that the cumulative effect on the community of her many offences is serious,” he said.
She was an “unacceptable risk” to the community, which outweighed her ties to Australia or the consequences for her family.
According to Department of Home Affairs guidelines, national interest is cited in “exceptional cases” such as those involving “national security, organised crime and crimes against humanity”.
Such a ruling can only be challenged through the Federal Court.
It took several months for the ‘Raptor’ squad to knock on Weti-Safwan’s door and take her to Sydney’s Villawood detention centre.
She twice lodged appeals with the Federal Court. Despite being told she was fighting a losing battle, Weti-Safwan won.
Her lawyer Susan Phillips successfully argued Dutton had erred by not giving her the opportunity to file submissions or further material.
Both women cried when the decision was delivered. It was the third of its kind this year.
Phillips believes Dutton’s decision to personally cancel Weti-Safwan’s visa was an example of a “creeping intoxication with power”.
“Deportation is a whole second tier of punishment and is so unjust,” she says.
People like Weti-Safwan “are not statistics, they are real people … members of the Australian community - they are our people”.
A week after her release, Stuff visited Weti-Safwan at home in Bass Hill, south-west of Sydney.
“It means the world to me to have my freedom back again,” she says.
“I’ve had two years taken away from my life and it’s been quite traumatic. All I want to do is get my life back to normal.”
Weti-Safwan hopes to be an inspiration to others who are fighting the cancellation of their visas.
“Don’t give up. Know that there’s someone like me who’s fought ... the system and come out a winner.”
Andrea Vance and Blair Ensor