Misusing the Australian legal system to deport long-term residents

The injustice of deporting long-term permanent residents under the Migration Act is about Australia not owning its people, writes Gerry Georgatos.

AUSTRALIA'S USE OF IMMIGRATION DETENTION and deportation powers under section 501 of the Migration Act 1958 (Cth) reveals significant legal and moral failures, especially where they affect permanent residents who have lived in Australia since infancy.

Many are now in their 60s or 70s, with their last criminal conviction dating back to the 1980s. Detaining and deporting these individuals on “character” grounds is not only disproportionate and punitive but also offends foundational principles of justice, human rights, and the rule of law. They have served their "time".

The fiction of “alienage” and the betrayal of belonging

Under Australian law, non-citizens remain liable to removal even if they have spent their entire lives in Australia.

Section 501 of the Migration Act 1958 (Cth) allows the Minister for Immigration to cancel a visa where a person fails the “character test,” including based on a substantial criminal record — defined to include sentences of 12 months or more, whether served cumulatively or concurrently. However, I contend, many do not have a substantial record.

However, this legal fiction – that permanent residents remain “aliens” despite lifelong residence – ignores the reality of their lives.

In Love v Commonwealth; Thoms v Commonwealth, the High Court acknowledged that some individuals, even if not citizens, may fall outside the reach of the alien power under s 51(xix) of the Constitution due to their deep and permanent connection to the Australian community. While the case applied specifically to the First Peoples, its underlying principle – that belonging can transcend formal legal status – applies with force to those who have lived here since childhood and built their lives entirely within Australia.

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Double punishment and the failure of proportionality

Many of those targeted under s 501 were convicted of crimes in their youth, decades ago, often during periods of substance abuse, poverty, or trauma. They have since served their sentences, many rehabilitated, and led law-abiding lives. Cancelling their visa decades later amounts to a second punishment—one, not imposed by a court but by executive discretion.

This raises concerns about double jeopardy and the erosion of finality in sentencing. In Nystrom v Australia, the UN Human Rights Committee criticised Australia’s deportation of a man who had lived in Australia since infancy as a violation of Articles 17 and 23(1) of the International Covenant on Civil and Political Rights (ICCPR), which protect family life and privacy. The Committee stressed that punishment should not extend beyond the sentence imposed by a court, particularly when the person has effectively become part of the national community.

Indefinite detention and human rights breaches

When visa cancellations occur under s 501, individuals are typically detained in immigration detention under ss 189 and 196 of the Migration Act. Where removal is not practically feasible – for example, if a person is stateless, cannot obtain travel documents, or is unfit to travel – detention may become indefinite.

The High Court’s recent decision in Commonwealth v NZYQ held that indefinite administrative detention without a real prospect of removal is unlawful. The Court struck down the long-standing authority of Al-Kateb v Godwin, recognising that executive detention without end violates both the rule of law and fundamental constitutional limits on non-punitive detention.

This ruling is especially significant for long-term residents now elderly and unwell. Some have dementia, cancer, or mental illness and cannot reasonably be removed. Yet they remain detained, isolated from family and medical support, often without clear legal pathways to relief.

Lack of procedural fairness and excessive ministerial power

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) expanded the Minister’s powers under s 501, allowing for mandatory cancellation in certain cases and personal intervention to override tribunal decisions. These powers are largely non-compellable, non-reviewable, and immune from merits-based scrutiny under s 197C and s 501(3).

In Baljiniravi v Minister for Immigration and Border Protection, the Federal Court noted that decisions under s 501 can have profound human consequences and thus require strict procedural fairness. However, in practice, the truncated and opaque nature of the process often deprives detainees of meaningful review. Some receive notices of cancellation while in hospital, with minimal access to legal aid or interpreter services. Others wait years in detention while challenging the decision through the courts.

Collateral damage to families and communities

The human cost of deportation is severe. Many of those affected have spouses, children, and grandchildren in Australia. Their families – who often relied on their support – suffer greatly. In Nystrom, the UN Human Rights Committee found that deportation interfered disproportionately with the applicant’s right to family life, noting the “irreparable harm” caused by exile.

Moreover, these deportations disproportionately impact Māori, Pasifika, and Australia’s First Peoples, reflecting deeper patterns of racial injustice. Many of these individuals were over-policed and over-incarcerated during periods of discriminatory policing. To then exile them in later life – when they have long ceased to be a danger – compounds this structural harm.

Scholars like Mary Crock and Daniel Ghezelbash have criticised Australia’s approach as “crimmigration” — the merging of criminal and immigration law to expand executive control while evading the constraints of due process.

The ethical and constitutional case for reform

From a constitutional perspective, the use of immigration law to override criminal law principles creates troubling separation-of-powers issues. The High Court in Chu Kheng Lim v Minister for Immigration established that only courts may impose punishment. Yet in deporting individuals long after they have served their sentence, the executive is engaging in a quasi-punitive act that bypasses judicial oversight.

There is also a compelling ethical argument. Elderly permanent residents who have paid taxes, supported families, and abided by the law for decades should not be cast out. The doctrine of rehabilitation recognises that individuals can change and contribute positively to society. Deporting someone for offences committed in the 1980s ignores this possibility entirely.

Australia must revisit the balance between public safety and individual justice. Reform should include a statutory presumption against deportation for long-term residents, particularly where offending is historic, rehabilitation is demonstrated, and removal would impose disproportionate hardship.

From Melbourne Immigration Detention Centre, I received the following list (I have spoken to several of those listed):

Detainee YZ — age 60, 54 years of residency in Australia, in detention for eight years. He was last incarcerated in the 1980s.
Detainee GL — age 69, incarcerated for six months in 1995, in detention for five years.
Detainee TM — age 69, incarcerated in the late 1970s, lived in Australia for 49 years. In detention for almost five years.
Detainee PM — age 64, has never been incarcerated, lived in Australia for 49 years. In detention for almost five years.

There were more on the list, but you get the point.

Many will ask, how can someone, suddenly, be slated for deportation for a conviction decades ago, for a single carceral sentence, when they’ve never been convicted? One may well ask, how can someone be deported who has lived their life in Australia and has an Australian-born and bred family?

I have averted deportation for those whom I have been able to support, but am now battling advanced Parkinson’s disease. I have averted deportation for 23 individuals out of 25. All lived most of their lives in Australia, have Australian-born and bred families. They are effectively Australians, except for a piece of paper. Australia must realise them as their own, good and bad. But we have in immigration detention, individuals who offended decades ago, some all the way back to the 1970s, some who have never been convicted. Surely, Australians need to know, whether all this is true, and if so, why and what occurred to "natural justice" and "procedural fairness".

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I contend, the character assessment is being misused, or has been, as character assassination. We have a Kafka-esque immigration detention system. What is occurring with deportations and ‘endless’ years of immigration detention is a national disgrace, a national abomination, an indictment of Australia as an abuser of human rights. Urgent reforms are long overdue.

One of the two individuals I was not able to avert deportation, is Stephen Pokrykwa. He was deported last year, for one carceral sentence. He lived in Australia for half a century. Leaving behind six children, eleven grandchildren. I am trying to bring him home.

Despite Parkinson’s, I may have to endeavour a challenge to the High Court. It should not be this way.

For all intents and purposes, Stephen is Australian. His deportation has devastated not only him, but his partner, children, grandchildren, and wider community. This punishment, imposed after his completed prison sentence, is not just disproportionate — it is inhumane and harmful to innocent family members.

The ongoing application of section 501 continues to tear apart Australian families and removes from this country people who were raised here, educated here, and socialised here. This is particularly distressing when it involves people who arrived as children and had no say in their migration. Deportation in such cases constitutes a double punishment and violates the principles of fairness and proportionality. Moreover, it risks breaching Australia's obligations under international human rights law, including the Convention on the Rights of the Child, which prioritises the best interests of the child — a principle that has not been adequately respected in Stephen’s case.

Stephen is not a risk to the community — he is a person who, like others I’ve supported, seeks to live a quiet and lawful life with his family. He deserves the same chance at rehabilitation and renewal that others in far more difficult circumstances have been given.

I have contended to Minister Tony Burke; Australia is arguably a nation of second chances. I ask the Minister, with compassion and courage, to grant Stephen his.

Conclusion

Australia’s use of section 501 to detain and deport elderly permanent residents with decades-old criminal convictions is both legally and morally indefensible. It represents a failure of justice, compassion, and proportionality. It punishes not just individuals but entire families and communities. It undermines faith in the rule of law and risks violating Australia’s international human rights obligations.

To restore fairness, Australia must reform its immigration regime to ensure that belonging, identity, and rehabilitation are given the weight they deserve. Lifelong residents should not be banished from the only country they know under the guise of “character.”