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This contemporary comment considers the consequences of the 2014 amendments to Section 501—the character test—of the Migration Act 1958 (Cth) and considerations of greater fairness, responsibility and social cohesion for long-term residents who experience character-based visa cancellation. New Zealanders have become the largest nationality group of people deported from Australia, a relatively new phenomenon in Australia's deportation history. Many are long-term residents. The increasing numbers of deportations across the Tasman caused diplomatic rifts to emerge, testing the traditionally close relationship between Australia and Aotearoa, New Zealand. It raised the issues of fairness and where responsibility lies for the conduct of non-citizen long-term residents who call Australia home. Recognising the value of long-term non-citizen residents to the Australian community, those resident for a period of 10 years or more were once protected from criminal deportation under the Hawke-Keating Labor Governments. With a focus on New Zealanders and a commitment to reset diplomatic relations, the Albanese Government has returned to this 'common sense' approach. This contemporary comment draws on a systematic policy review to provide policy insights from the past and present to consider future directions for New Zealander and other long-term non-citizen Australian residents. [ABSTRACT FROM AUTHOR]

Australia has been widely condemned for its harsh and comprehensive external border controls that seek to control the inward mobility of would-be asylum seekers through visa denial, interdiction and offshore detention. Less widely discussed is the fact that internal controls have been repeatedly ramped up over the past two decades. This includes the administrative removal of lawfully-present non-citizens following visa cancellation on character grounds under s501 of the Migration Act 1958 (Cth). Automatic visa cancellation was introduced in 2014 for non-citizens sentenced to a prison term of 12  months or more, or for certain offences, bypassing individualised decision-making and raising the spectre of a visa cancellation pipeline feeding a highly automated deportation machinery. In an age of increasingly automated forms of governance, a key question that arises is the role that has been played by automated systems in achieving what has been a seismic shift in practice, and the normative implications of any developments towards automation within the visa cancellation and removal systems. This paper outlines the shift towards automation in other systems of governance in Australia—most notably the notorious Robodebt scheme—before examining automation in Australia’s visa cancellation system. Documentary analysis of recent parliamentary inquiries, independent reports and government policy is used to piece together the development of inter-agency data exchange practices and automation over three specific periods—historical practice pre-2014, post-2014 to the present, and proposed future developments. We conclude that Australia’s s501 visa cancellation system is neither automated nor automatic. Rather, the 2014 law reform gave rise to a ‘surveillance fantasy’ with immense consequences for non-citizens, particularly those who face long days in immigration detention at the conclusion of their prison sentence. We show that while concerns about increasing automation are well-founded, systems based on less sophisticated forms of information handling and reliant on human decision-making nevertheless continue to raise age-old questions concerning efficiency, accuracy and fairness. [ABSTRACT FROM AUTHOR]

This article focuses on attempts by settler colonial states to deport Indigenous non-citizens. The concept of "Indigenous anti/deportation" is introduced to capture both the inseparability of deportation from its contestation, as well as the unique stakes involved in contesting the imminent deportation of members of Indigenous communities. Comparing cases in Canada and Australia, Indigenous anti/deportation highlights fundamentally divergent claims of sovereignty, the assertion of Indigenous citizenship orders, and a transformation of how belonging is understood in contexts of settler colonial occupation. This article concludes by considering the implications of cases of Indigenous anti/deportation for future struggles for Indigenous sovereignty and for solidarity-building between migrants and Indigenous peoples. [ABSTRACT FROM AUTHOR]

In this article, we explore Australia's deportation of people with mental illness from an ethical and human rights perspective. We outline the legislative framework regulating migration policy in Australia, focussing on Section 501 (s.501) of the Migration Act 1958 (which makes provision for deportation of non-residents on character grounds) and on the recently issued Direction 99 (which provides guidance on visa refusal and cancellation under s.501). We find the definition of a failed character test embedded within the legislative framework to be discriminatory, in that it conflates mental illness with character attributes. We present recent data on s.501 deportees sourced from the New Zealand Police and Manatū Hauora (the New Zealand Ministry of Health). Drawing on our clinical experiences working in forensic psychiatry and rehabilitation services, we describe some of our patients' experiences and the detrimental effects of deportation on their health and well-being. We argue that deportation of people with mental illness contravenes principles of psychosocial rehabilitation and recovery, is discriminatory and constitutes a moral wrong. Furthermore, while we recognise that recent policy changes reflect a tempering of the previous hard-line policy stance, it remains to be seen what effects they will have in practice. We question whether the new guidance will be enough to improve the treatment of and outcomes for those with mental illness, or whether the changes represent a case of too little, too late. [ABSTRACT FROM AUTHOR]

Millions of people cross political borders yearly without having the proper documents. This has led to increased detention and deportation practices in destination countries for reasons related to security and sovereignty. The objective of the current study was to analyze and visualize research publications on the detention and deportation of migrants to identify current research hotspots, research gaps, and potential future research in the field. Relevant research articles were obtained from the Scopus database for the study period from 1900 to December 31, 2022. The analysis included presentations of key contributors to the field and visualization of topics, themes, and international collaboration. In total, 906 articles were found. The earliest was in 1982. The majority of articles were published in journals within the subject areas of social sciences and humanities. The number of publications showed a steep rise from 2011 to 2022. The Journal of Ethnic and Migration Studies was the most prolific, but publications in the Citizenship Studies journal received the highest number of citations per article. Researchers from the United States contributed the most. Mexico ranked fifth in the number of publications. Oxford University was the most prolific institution, followed by three universities in Australia. The majority of articles were single-authored, indicative of limited author-author collaboration. Research hotspots in the field were "human rights" and "mental health". The detention and deportation of Mexican and other Latino migrants in the United States constituted a distinct research theme in the field. International research collaboration was limited by geographical proximity (e.g., the United States and Mexico) or common language (e.g., the United Kingdom and Australia). Future research topics should focus on alternatives to detention, family separation, and healthcare services for detained migrants. Research activity on detention and deportation is required from all world regions, including the source countries of migrants. Future research should promote alternatives to traditional detentions. The contribution of countries in Africa, the Middle East, and South-Eastern Asian regions needs to be encouraged. Future research on the detention and deportation of non-Latino migrants is highly required. [ABSTRACT FROM AUTHOR]

This article analyses the legal frameworks that perpetuate the criminalisation, disposability and contempt for Maori and Pasifika peoples. Section 501 of the Australian Migration Act 1958 and the New Zealand Returning Offenders (Management and Information) Act 2015 reflect crimmigration laws that feature the combination of criminal and immigration law. A doctrinal analysis of the legislative frameworks highlights key issues including several breaches of rights. However, a critical analysis using the theoretical lens of racial capitalism highlights that changes to substantive provisions of the legislation would not resolve the issue. The lens of racial capitalism highlights that key themes such as expulsion and assimilation, the denial of an Indigenous identity, the disposability of Maori and Pasifika bodies and the criminalisation of Maori and Pasifika peoples lie at the heart of the issue. These themes indicate that race is a key issue in the operation of crimmigration laws and practice in Australia and New Zealand. This article seeks to provide a problematisation of the issue, exploring and critiquing the provisions and key ideas that emerge. Overall, it seeks to highlight that crimmigration policy has racial undertones that perpetuate its existence and implementation. This article does not purport to problem solve or offer solutions. Amending or repealing the relevant legislative frameworks fails to address the root causes of the issues that lead to the over-criminalisation and marginalisation of Maori and Pasifika peoples in Australia and New Zealand. Any way forward must address the underlying issues that result in the creation and implementation of legislation and schemes that disproportionately harm Māori and Pasifika peoples. Constitutional change and the recognition of Maori as equal treaty partners under Te Tiriti o Waitangi is critical and should be prioritised. [ABSTRACT FROM AUTHOR]

In Australia, past and present, Pacific Islanders have been labelled as undesirable others, included to temporarily fill labour shortages as required, controlled while resident in the country and removed when no longer deemed necessary. Pacific Islanders' experiences in Australia reveal the inception, continuity and durability of differential inclusion produced by border control mechanisms. This paper traces Australia's history of deporting Pacific Islanders over more than a century: from indentured labour and blackbirding, colonial occupation of Pacific Islands and the White Australia Policy, to more recent patterns of selective inclusion, such as the labour mobility schemes, to the disproportionate effects on Pacific Islanders of modifications to the criteria for deportability introduced in 2014 with the amendments to Section 501 of the Migration Act 1958 (Cth). By tracing the past-present circular border policies, this paper argues that the high number of Pasifika New Zealanders deported from Australia represents a continuation of a regime of differential inclusion. [ABSTRACT FROM AUTHOR]

The overall aim of the paper is to present evidence on the factors underpinning historical deportation cases, by exploring the reasons, explanations and patterns related to deportation in Australia. The purpose is to consider whether these historical factors are antecedent to current forms of deportation occurring in Australia, and to bring to the fore potential recurring patterns. Deportation is currently conceptualised by border criminologists as a punitive tool of discipline and control, within the realm of penal powers. Some of this work on the 'deportation regime' asserts that certain migrants, or groups of migrants, are undesirable: their identity, (not)belonging and punishment have become inherently intertwined, and their mobility has become politicised and criminalised. This article theorises that deportation has been used in Australia, now and in the past, to expel individuals who are viewed as detrimental to the 'health' of the host society. The 'deportation categories' demonstrate that migrants' desirability has historically been a temporary condition, shifting over time in line with the state's requirements. They also demonstrate the historical regime of criminalisation of undesirable others enacted through Australia's border control regime. [ABSTRACT FROM AUTHOR]

This article examines the fraught relationship between international law and what has become known as 'crimmigration law' in Australia. The legal and policy framework for deportation of non-citizens on character grounds has become increasingly restrictive. It has also become confusing in its interface with obligations not to send back or refoule individuals who engage protection obligations as refugees or on humanitarian grounds. We document and critique the treatment of long-term permanent resident non-citizens with particular claims to compassion as persons with disabilities and as refugees. We consider issues of both process -- where formalistic administrative processes fail to make accommodations for disability -- and substance. Law and policy give conflicting commands as to whether and how non-refoulement obligations must be considered in visa cancellation processes. Increasingly, the confusion plays out in indefinite detention. Amendments to the Migration Act 1958 (Cth) reaffirming Australia's commitment to non-refoulement have maintained a disconnect between domestic law and international law. We argue that it is critically important that non-refoulement obligations are considered in visa cancellation processes and that the human consequences of cancellation and removal are confronted. [ABSTRACT FROM AUTHOR]

Background. Resilience entails drawing on resources to navigate adversity; few measures exist to explore how children cope with adversity in varying cultural contexts. Purpose. We aimed to develop a socially-inclusive measure of child resilience by (1) co-designing methods to engage diverse families, and (2) identifying resilience factors. Methods. We used a community-based participatory research (CBPR) approach to recruit Aboriginal families, refugee families, and families from hospital outpatient clinics. To triangulate findings and codesign methods, we held discussion groups with 21 service providers. Codesigned [End Page 1844] group-based visual methods were employed in discussion groups with 97 parents and 106 children (5–12 years). Findings. Participants identified culturally-meaningful resilience factors such as loving family, speaking their home language (for families of Non-English speaking backgrounds). We discuss differences and commonalities across participant groups. Conclusion. Co-designing research that is both rigorous and inclusive is critical for gleaning culturally-meaningful data from diverse families. [ABSTRACT FROM AUTHOR]

Australia's Migration Act 1958 (Cth) provides for visas that honour Australia's international non-refoulement obligations; it also provides for visas to be refused or cancelled on criminal grounds, resulting in removal from Australia. In 2014, Australia introduced mandatory visa cancellation for certain criminal non-citizens sentenced to 12 months or more in prison. Coinciding with these changes was the codification of aspects of refugee and human rights law, the severing of references to the 1951 Convention relating to the Status of Refugees, and the introduction of section 197C in the Migration Act, which provides that non-refoulement obligations are irrelevant when considering the power to remove non-citizens. This article focuses on the interaction between these changes in the law, analysing the application of the complex legal provisions which govern the legal position of those seeking protection or owed international non-refoulement obligations. This analysis identifies a number of unintended consequences that appear to have resulted from these changes. These include risks that Australia's international non-refoulement obligations may not be adequately considered or safeguarded, resulting in serious consequences for the individual concerned, including the possibility of indefinite detention or refoulement. They also include implications for the rule of law, and uncertainty, delay, and cost in aspects of the system for decision making and review. [ABSTRACT FROM AUTHOR]

This article explores the history of the Japanese in New Caledonia at the turn of the twentieth century before considering how the French Pacific empire ordered the incarceration and deportation of nearly all Japanese subjects in New Caledonia to Australian internment camps. Retracing this neglected history through testimonies of descendants of incarcerated Japanese, as well as through archived governmental reports, this study first examines the legal identity of mixed-race Japanese Melanesians (or Nippo-Kanaks) and that of other half-Japanese métis in New Caledonia and then analyzes how French administrators policed the Japanese emigrant population. This article additionally considers the family history of a second-generation Nippo-Kanak daughter who shares a rare perspective on the New Caledonian Japanese whom the French refrained from deporting. [ABSTRACT FROM AUTHOR]

The ability to deport or cancel the visas of non-citizens, regardless of the length of their residency in Australia, remains a controversial topic. Whilst it reflects long-standing Australian policy, the widening scope of s 501 of the Migration Act 1958 (Cth) should provoke reflection and criticism. The legislative provision empowers the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs with a non-delegable, non-reviewable and non-compellable discretion to expel from Australia those deemed not to be of good character. I explore the history of the character test in Australia, highlighting the relevant international and domestic legal frameworks with a particular focus on visa holders to whom Australia owes non-refoulement obligations, followed by key issues arising from the current regime: the potential inconsistency of domestic legislation with international law; the inherent irrationality of assessing future risk; and the consequences of mandatory detention. I will then explore the current review process and its legal and practical barriers, before concluding with select solutions. [ABSTRACT FROM AUTHOR]

Offenders who are not Australian citizens and are imprisoned for one year or more risk being deported at the expiration of their sentence. There is considerable divergence across Australia regarding the impact that this should have in the sentencing of offenders. In Victoria, Queensland and the Australian Capital Territory, the risk of deportation can mitigate penalty, but in New South Wales, Western Australia and the Northern Territory, courts have refused to follow this position. The law relating to the connection between the risk of deportation and sentencing is unclear in South Australia and Tasmania. This article analyses the role that the prospect of deportation should have in the sentencing calculus, with a view to harmonising this area of the law. We conclude that deportation at the expiration of an offender's sentence is a hardship and hence should mitigate the sentence imposed by the court. The decision whether or not to deport offenders is, however, generally not known until after the sentence is imposed. This necessarily introduces a degree of uncertainty into the sentencing process. This speculation can be ameliorated by rescinding the discounted portion of the sentence in circumstances where the offender is not ultimately deported at the completion of the sentence. This is consistent with the approach taken to another speculative mitigating factor, namely a promise by offenders to assist authorities. Implementing this framework in relation to offenders who are at risk of being removed from Australia at the expiration of their sentence would enhance the coherency and doctrinal soundness of this area of the law. [ABSTRACT FROM AUTHOR]

In 1906, the High Court of Australia decided a case that is still cited today in support of the Commonwealth's sweeping power over 'aliens' under the Constitution. The significance of the case as a violation of the rule of law has, however, yet to be appreciated. In Robtelmes v Brenan (1906), the High Court declared the country's entire community of South Sea Islanders to be 'indisputably alien' people who could be 'forcibly deported' under the 'aliens power' in the Constitution. Under legal principles unchanged since Calvin's Case (1608), nationality and alien status had nothing to do with the colour of a person's skin. Contrary to law, the newly established Australian High Court held that all Islanders were aliens because of their race. Moreover, in their previous political careers, the three judges -- Chief Justice Griffith and Justices Barton and O'Connor -- had been leading advocates for replacing Islanders with white labourers for plantation labour. It was also, then, as this article demonstrates, a major conflict of interest for these High Court judges to uphold the expulsion of Islanders in their judgment in Robtelmes. The article argues the expulsion of the Australian Islander community was therefore unlawful. [ABSTRACT FROM AUTHOR]

Immigration has played a particularly significant role in shaping settler-colonial societies, including Australia. Successive governments have taken instrumental roles in constructing narratives of Australia’s immigration history. Contrary to the images we see today – of capsizing boats and desperate people seeking refuge – the picture of post-Second World War immigration was all sunshine and smiles, hope and opportunity. Throughout the post-war decades the vaunted Australian sense of fairness was tested by those who entered the country without valid entry permits, for example stowaways and ship’s deserters or visitors, including students who had overstayed their visas. In this paper, we consider an archaeological assemblage of 327 graffiti made by immigration detainees while they were awaiting deportation from the North Head Immigration Detention Centre in Sydney, New South Wales. These graffiti provide a counter-narrative to the rosy image and official record of late-twentieth-century immigration to Australia. [ABSTRACT FROM PUBLISHER]

The British preference of Australian immigration policy was challenged by the demands of a rapidly expanding post-war programme overseen by the newly established Department of Immigration. An essential function of the department was the screening of prospective migrants against criteria shaped by national population policy preferences. This paper examines Australia’s post-war immigration security screening policies in domestic and international contexts. It compares the immigration department’s approaches to immigrating British subjects with their approaches to those from other national and ethnic backgrounds. We explain how assumptions about the free passage of British subjects across empire could persist until the 1970s despite revelations that Australian authorities were powerless to stop those with serious criminal histories gaining entry to the country. These revelations about risky British migrants exposed the limits of Australian control over entry and exclusion, while illuminating the emerging frameworks of post-war border controls. [ABSTRACT FROM PUBLISHER]

In March 1928, a tabloid-fuelled interracial sex scandal led to the deportation of an African American jazz orchestra and the introduction of a decades-long ban on black musicians. The incident raised questions about the place of cosmopolitanism within the White Australia experiment and calls into question the widely held assumption that the policy enjoyed unquestioned popular support in this period. By tracing the links between the individuals who championed the deportation, it is possible to identify divisions over the scope and meaning of the White Australia policy. [ABSTRACT FROM AUTHOR]

The article discusses the case Plaintiff S156/2013 v. Minister for Immigration and Border Protection decided in the High Court of Australia. Topics discussed include laws made for regulating citizenship and migration related disputes, claims for the removal and deportation of illegal immigrants and the constitutional law responsible for regulating the status of aliens in Australia.

The article focuses on the Australian military-led operation to prevent illegal immigration and human trafficking in Australia, known as Operation Sovereign Borders (OSB). Topics include the Australian government's OSB policy development, the United Nation's (UN) Universal Declaration of Human Rights, and the principle of non-refoulement.

The article discusses the introduction of human rights fair trial standards into extradition law in Australia. Topics discussed includes the challenges to deportation in refugee law, the Extradition Act 1988 and the International Covenant on Civil and Political Rights 1966. It also cites specific references of several court cases including New Zealand v. Johnston, New Zealand v. Moloney and Snedden v. Minister for Justice of the Commonwealth.

The 1923 deportation of two Irish republican envoys was a signal moment in the construction of Australian immigration policy, remembered more in legal than political history. The arrival of the Irish envoys, anti-treaty, anti-Free State and anti-British, provoked anxieties about imperial loyalty and domestic harmony. This article contextualises the role of the envoys as a performance of Irish republican politics in the dying stages of the Irish Civil War before analysing the responses to them by Australian governments determined to curb their activities. Immigration policy and administration were constructed in this episode as an element of national security, one that implied a consideration for relations between states of a changing empire as well as the need for domestic harmony within Australian borders. [ABSTRACT FROM AUTHOR]