A New Zealand mother was detained in Australia for many years and taken away from her family under discretionary ministerial powers, as Fabian Robertson reports.
*This article was the April prize winner in the IA Writing Competition Most Compelling Article category.
OLIVER* was three years old when his mother was seized by government officers and taken to the Villawood Detention Centre. Since then, Oliver’s only contact with his mother has been in the form of fortnightly visits to Villawood’s family area, where they would pass the time on a small playground and a collection of board games.
Oliver’s mother, Emily*, says:
We’d spend a few hours together every second weekend, but it wasn’t quality time.
Oliver didn’t fully understand why I was locked up, and had a lot of resentment. It felt selfish that I couldn’t be there for him, but there was nothing I could do.
When it came time to leave on visit days, Oliver used to refuse, begging me to come with him and crying, sometimes for an hour or more. It was heartbreaking.
Family visits were suspended at Villawood during the first and second major outbreaks of COVID-19 in Sydney. When they were reinstated after months of no visitation, restrictions meant that Emily had to be separated from Oliver by a sheet of perspex.
Now ten years old, Oliver hasn’t seen his mother outside of a detention centre since 2015. In those days, Oliver was just a preschooler, and he and his mother led quiet and unassuming lives. To understand why their lives unravelled, one must look back to events that took place prior to Oliver’s birth.
Fleeing torture, beatings and violent retribution
Emily arrived in Australia by plane in March 2009. At the time, she was fleeing New Zealand for her life. The exact nature of the danger she faced cannot be revealed due to ongoing safety concerns, but the Federal Court has acknowledged she faced the risk of 'torture, beatings and violent retribution' in New Zealand.
To escape, Emily adopted a new identity with an accompanying false passport. It was under this identity that she arrived in Australia.
After living peacefully in the Northern Territory for over a year, Emily’s breach of immigration law eventually came to the attention of the Department of Home Affairs and she was sent to immigration detention.
At a hotel used by the Federal Government for detention, Emily faced the imminent prospect of deportation. To her, staying in detention meant exposing herself to potentially lethal circumstances in New Zealand.
Emily says:
“I was told by an officer of the Department [of Home Affairs] that I could not satisfy the criteria for a protection visa and that I would be deported. The thought of being sent back terrified me."
Within three days, Emily absconded from hotel accommodation.
She says:
“I did what I thought was the only thing I could do to survive."
After her escape, Emily led a quiet life in the Australian community. She made friends in her local area, got married and eventually gave birth to her son, Oliver. It was only five years later, in August 2015, that Emily was located by the Department of Home Affairs and sent to Villawood Detention Centre.
Dutton’s ‘extraordinary and unusual powers’
Once inside Villawood, Emily repeatedly applied to the Department of Home Affairs for a visa to live in the Australian community.
In 2018, while Peter Dutton was the Minister for Home Affairs, Emily was refused a visa under the ‘character test’ within section 501 of the Migration Act. The decision pointed to Emily’s violation of immigration laws and minor criminal history.
Typically, an individual is said to fail section 501’s character test only if they are convicted of high-level criminal offences and visas must be cancelled for convictions incurring a prison sentence of 12 months or more.
In 2021, for example, 78 visas were cancelled for assault convictions, 53 for child sexual offences, 49 for domestic violence, 49 for theft and armed robbery, 20 for sexual offences and rape, nine for murder and five for manslaughter.
By contrast, Emily’s most serious conviction landed her just a 28-day sentence back in 2010, making the visa refusal under section 501 highly unusual. As a result, the Administrative Appeals Tribunal (AAT) overturned the Federal Government’s decision. The AAT was not satisfied Emily failed the character test nor that there was an adequate risk she would engage in criminal conduct if released.
The Tribunal acknowledged Australia’s obligation to protect Emily and found 'strong humanitarian reasons' for her release, including the need to reconnect her with her son.
The danger Emily faced in Villawood contributed to the Tribunal’s decision. In 2016, Emily was physically assaulted by two detainees from New Zealand and had to be transported to Fairfield Hospital for treatment. The attackers were later linked to the same threat to Emily's life that she faces in New Zealand.
Despite this, in 2020, Dutton exercised his personal power as Minister under section 501, to overturn the Tribunal’s decision and refuse Emily’s visa, arguing it was in the "national interest" to keep her from entering the Australian community. At this point, Emily’s minor criminal conviction and infringement of immigration law had occurred over a decade prior, Oliver was still without a mother and the threat to her life was still ongoing.
On appeal of Dutton’s decision, the Federal Court sympathised with Emily, but found no legal grounds to overturn due to the strength of section 501:
'The [Migration] Act confers a number of extraordinary and unusual powers on the Minister… [Emily] has been the object of the exercise of all these extraordinary powers, so it is little wonder she apprehends she is being victimised and/or punished.'
According to Ian Rintoul, spokesperson for Refugee Action Coalition Sydney, the discretionary powers conferred by section 501 are commonly referred to as “God powers”.
Rintoul says:
“The powers on character grounds encompass almost anything that may enter the Minister’s mind, and the Coalition Government sought to use those powers much more zealously and indiscriminately than ever before.”
According to Rintoul, Emily’s case highlights the limited utility of administrative and judicial review in overturning ministerial decisions regarding character-based visa cancellations, with both the AAT and Federal Court unable to intervene in Dutton’s decision.
Emily had already spent over five years in Villawood Detention Centre and would continue to be detained for a further two years. By the time of her deportation on 10 January this year, Emily had spent seven years and five months in detention, a total of 2,710 days.
Human rights and families desecrated
The Australian Government has not only disregarded the recommendations of the AAT, but also the findings of the Australian Human Rights Commission.
Emily’s case was subject to an inquiry by the Commission in 2021, which made preliminary findings that Emily’s detention was both indefinite and arbitrary in contravention of the International Covenant on Civil and Political Rights. Although Australia is a signatory to the Covenant, those rights are not directly enforceable, and as such, the Commission’s findings had no impact on Emily’s situation nor the effect of the Migration Act.
The Commission also found that Emily’s separation from Oliver as a consequence of her detention amounted to arbitrary interference with her family — an interference that continues to this day.
Today, Emily lives in New Zealand, more than 4,000 kilometres from Oliver and her husband, who still reside in Australia.
Despite their continued separation, Emily is hopeful about seeing Oliver soon:
I hope it’s going to be possible to live with Oliver again. I'm a little bit uncertain about my fate in New Zealand, and I just don't want to be placing my child in an environment which could be dangerous.
I wouldn't want to separate him and his Dad either because they have a very good bond and I understand that is really important, for a ten-year-old boy. Oliver has been through more than enough heartbreak.
At the end of the day, I just want the best for my boy.
* Actual names withheld
Fabian Robertson is a fourth-year Arts (Media Studies)/Law student at the University of Sydney. He edited 'Honi Soit' in 2022 and 'Pulp' in 2021.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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