Australian Immigration Daily News

Readers may have noted that in several articles that I have posted on the MA blog regarding visa cancellation cases, I have invited opinions as to whether Australia's legislation is "too harsh" in its approach to longstanding permanent residents.  

My assessment of the comments on this issue is that the the weight of opinion is to the effect that visa holders should expect to be removed if they commit criminal offences causing them to fail the character test, and that they shouldn't cry about it.

In light of these comments I thought it would be interesting to check the New Zealand Immigration Act and see how it compares with our own.

Well, guess what: the legislation in NZ is both tougher in some respects and significantly more lenient in other respects than the Australian framework!

Here's the story. 

The applicable provision of the NZ Act is section 161 - Deportation liability of residence class visa holder convicted of criminal offence.

Under this provision, a person who is in NZ on a "temporary entry class" visa may be deported if they are convicted of an offence, in NZ or elsewhere, for which a court has the power to impose imprisonment for 3 months or more. So, compare that with the character test in our section 501(6) which of course provides that a person  will fail the test if she/he has a substantial criminal record meaning having been sentenced to a term of imprisonment of 12 months or more.  

So in this respect, NZ is "tougher", isn't it.

And the same liability for deportation for an offence that attracts a prison sentence of 3 months or more also applies to residence class visas if the offence is committed within the first 2 years after the visa has been granted.

However, where a person has held a residence class visa for more than 2 years but less than 5 years, then liability for deportation will not apply unless the offence is one for which a term of imprisonment of 2 years or more can be imposed.  

Interesting, isn't it, in that the NZ legislation is written in terms of the term of imprisonment that can be imposed, and not the term of imprisonment that is actually imposed, as Australia's framework provides.

And what's the story in the case of a visa holder who commits an offence within 10 years of visa grant? The offence must be one for which a term of imprisonment of 5 years or more can be imposed. 

It does not appear under the NZ legislation that a person who commits an offence after holding a residence class visa for more than 10 years is subject to deportation at all.

So in this important respect, the NZ regime is indeed more lenient than ours, which of course allows a person who holds a "permanent" visa to be "removed" if they fail the character test, no matter how long after the visa the offence was granted that the offence was committed. 

Also: the NZ legislation enables a person who is served with a "deportation liability notice" (equivalent to a visa cancellation) to challenge the notice on "humanitarian" grounds.  

As we have seen from the decisions from the Australian courts, if the Minister exercises personal powers to cancel a visa, and determines that the risk of harm to the Australian community outweighs "humanitarian" considerations such as the best interests of the visa holder's children, strong family ties to Australia, etc., good luck with challenging such a decision - the chances are slim to nil!!!

What do you think? Who is "better", Australia or New Zealand?