Can New Zealand citizens be deported from Australia?

New Zealand and Australia have had a long relationship, and New Zealanders enjoy special travel and residency arrangements under the Trans-Tasman Travel Arrangement. But they aren’t protected from Australia’s migration laws. 

Many New Zealand citizens have lived in Australia for most of their lives. They’ve built careers, raised families and may have very few remaining connections to New Zealand. So it’s understandable that many are surprised to learn that, despite being settled in Australia in so many ways, they can still have their visa cancelled and be required to leave Australia if they don’t have Australian citizenship. 

Why can New Zealand citizens be deported?

Most New Zealand citizens living in Australia do so on a Special Category Visa (subclass 444). This visa allows eligible New Zealand citizens to live, work and study in Australia indefinitely without needing to apply for a traditional visa before they arrive. However, it doesn’t make them Australian citizens and, in many cases, it doesn’t give them permanent resident status.

Because New Zealand citizens on a Special Category Visa remain non-citizens under Australian migration law, they’re generally still subject to the Migration Act 1958. This means their visa can be cancelled in certain circumstances, including if they don’t meet the character requirements under the Act. If a visa is cancelled, the person may become liable for immigration detention and removal from Australia.

This is a real risk. Between 1 January 2014 and 31 December 2023, 8200 non-citizens had their visas cancelled and were removed from Australia. Of those, 888 were citizens of New Zealand.  

What are the laws

In 2014, the Migration Act was amended to broaden the grounds on which a person could fail the character test under section 501. The changes made it easier for the Minister to cancel or refuse visas where there is a reasonable suspicion that a non-citizen has been involved in serious criminal conduct or associated with people engaged in criminal activity. 

They also lowered the imprisonment threshold for character-based cancellation from a total of 24 months down to 12 months and introduced mandatory cancellation in cases where a non-citizen is serving a full-time custodial sentence and meets that threshold or has been convicted of a sexually based offence involving a child.

How does the character test work?

One of the most common reasons a visa may be refused or cancelled is because a person doesn’t pass what’s known as the character test under the Migration Act. The character test allows the Australian government to look at whether a person poses a risk to the Australian community. 

The government will look at a range of factors to apply the test. These include:

• A person’s criminal history
• Past conduct
• Involvement with criminal organisations
• Whether there’s a reason to believe they may engage in criminal conduct or any other behaviour that could threaten the community

In some circumstances, the law requires a visa to be cancelled, while in others, the Minister or a delegate has discretion to decide whether cancellation is appropriate.

Why have New Zealand citizens been particularly affected?

The laws apply equally to all non-citizens. However, New Zealanders have been disproportionately affected by the laws, and a visa cancellation can have significant personal consequences. 

When a visa is cancelled, a person may be detained in Australia’s immigration detention centres, while their matter is being resolved or while arrangements are made for them to leave Australia. Depending on the circumstances, they may be able to seek review of a decision. 

But strict time limits do apply, which makes it important to obtain legal advice as soon as possible. 

Because the consequences of visa cancellation can be so serious, understanding your rights and seeking advice early can make a significant difference to the options available.

What happens if your visa is cancelled?

If your visa is cancelled, it doesn’t necessarily mean you have no options. Depending on the circumstances, you may have the right to challenge the decision or apply to have it reviewed. However, strict time limits often apply, so it’s important to seek legal advice as soon as possible. 

In some cases, a person whose visa has been cancelled may be taken into immigration detention while their immigration status is resolved or while arrangements are made for them to leave Australia. Others may be able to remain in the community while review proceedings are underway, depending on their circumstances.

Because every case is different, it’s important to understand your rights and the options available to you. Get in touch with our team, who can help.

Why do these laws remain controversial?

Australia’s approach to cancelling the visas of some New Zealand citizens has attracted significant public and political debate over the years.

Critics argue that many of the people affected have lived in Australia for most of their lives, built families and careers here and have few remaining connections to New Zealand. From this perspective, requiring them to leave Australia places responsibility for people who have spent much of their lives in Australia onto New Zealand.

Supporters of the laws argue that Australia’s migration system should allow the government to remove non-citizens who fail the character test or commit serious criminal offences in order to protect the Australian community.

While opinions differ on where the balance should be struck, the current laws remain in force. For New Zealand citizens living in Australia, it’s important to understand that long-term residence alone doesn’t prevent a visa from being cancelled under the Migration Act 1958.

Reach out for support

If you’re a New Zealand citizen facing visa cancellation, deportation or concerns about your immigration status, it’s important to seek legal advice as early as possible. These matters can be complex, and strict time limits often apply if you want to challenge a decision or seek a review.

Contact Armstrong Legal today to discuss your situation. We’re here to help.