Of all visitors to Australia, New Zealanders have some of the most beneficial rights and pathways. However, a spate of recent visa cancellations for New Zealanders have made visitors from Australia’s neighbour inquiring how they can secure their status onshore.
This article will examine the risks and disadvantages of New Zealanders residing in Australia on a Special Category (Subclass 444) Visa (“Subclass 444”); why pathways to permanent residence may be beneficial; and a brief discussion as to what pathways may be available for New Zealanders to permanent residence in Australia.
Prior to 31 August 1994, New Zealand citizens living in Australia were categorized as exempt non-citizens and were considered permanent residents while in Australia. However, since 1 September 1994, all non-citizens, including New Zealand citizens must hold a visa to remain lawful in Australia. As such, the Australian Government introduced a new visa designated to allow New Zealand citizens to remain lawful in Australia: the Special Category (Subclass 444).
The Subclass 444 is available for any New Zealand citizens upon arrival into Australia. This visa is classified as a temporary visa despite allowing for indefinite stay. It further allows visitations to Australia, rights to work and study in Australia, and additionally, permits application for other permanent visas if eligible. Effectively, a New Zealander will be granted this visa automatically on arrival in Australia.
Whilst these benefits cannot be denied, however, due to the risks of cancellation, along with other disadvantages of the Subclass 444, it may be worthwhile to consider potential pathways to permanent residence.
In December 2014, the Australian Government introduced a new provision under section 501 of the Migration Act 1958 (Cth). Section 501 presents two types of risks for cancellation of any visas—including the Subclass 444—based on a person’s character.
Under section 501, the Department of Home Affairs (“DOHA”) must cancel a visa granted to a person who is:
- serving a sentence of imprisonment; and
- either has a substantial criminal record or is a person who has been convicted of a sexually based offence involving a child.
As to what amounts to a substantial criminal record, any person who:
- has been convicted of criminal offence resulting in a sentence of 12 or more months of imprisonment; or
- has received a number of shorter sentences which cumulatively add up to 12 months or more; or
- was found not guilty only by virtue of a mental illness and are currently detained under a mental health order, will be considered to be a person with a substantial criminal record.
In addition to mandatory cancellations, other cancellations are discretionary.
Discretionary cancellations would be permissible in situations where a person has failed the character test on any other prescribed grounds. These grounds include:
- If you are a person suspected of being associated with a group or organization suspected of being involved in criminal conduct; or
- If you are a person suspected of having committed, or are committing crimes that invoke serious international concern; or
- If you are deemed to not be of good character when looking at your past and present criminal or general conduct; or
- If you are deemed to be a person at risk of engaging in future criminal conduct; or
- If you have been convicted of any serious violent and/or sexual crimes.
This has led to numerous Subclass 444 being cancelled on character grounds including approximately 500 visa cancellations between 1 July 2018 to 30 June 2019 according to visa cancellation statistics on the Department of Home Affairs Website.
The consequences of such cancellation vary from individual to individual. However, according to the Joint Standing Committee’s Report on Migration’s inquiry into review processes associated with visa cancellations made on criminal grounds, some of the key consequences for Migrants are:
- Lack of support or connections to New Zealand, particularly for Subclass 444 Visa holders who have spent a significant portion of their lives in Australia prior to cancellation; and
- Separation from family members, in cases where a parent has their visa cancelled and is required to depart Australia, this may potentially infringe upon the rights of the child.
Difficulties associated with re-entering Australia may also arise as a result of this cancellation as well. Some cancellation actions will effectively be a bar on return to Australia. Evidently, the introduction of section 501 certainly presents risks for any Subclass 444 Visa holders who considers remaining in Australia a priority. Needless to say, the recent passing of a new Ministerial Direction further increases this risk.
Further considerations for cancellation
In April 2021, with the recent passing of Ministerial Direction 90, DOHA is now required to take into account several further considerations. Of relevance, the following factors must now also be considered in determining whether or not to cancel a person’s visa:
- a person’s record of domestic violence (“DV”); or
- a person’s history of DV-related or apprehended violence orders; or
- a person’s history of work exploitations.
These have provided additional grounds for cancellation.
It has become clear that even for Subclass 444 Visa holders, there are a wide variety of circumstances that grants DOHA the authority to cancel your visa. In addition to such risk, Subclass 444 visa holders may also experience several other disadvantages compared to permanent visa holders.
Disadvantages of Subclass 444 Visa and benefits of permanent residence
A New Zealand citizen residing in Australia under a Subclass 444 Visa may experience several disadvantages—these include:
- Ineligibility for any social benefits from Centrelink such as welfare payments, sickness or unemployment benefits, or disaster relief;
- Difficulty in attaining student loans;
- Ineligibility to apply for jobs in the Australian Army or Australian Government;
- Ineligibility to represent Australia in international competitions; and
- Ineligibility for political voting in Australia.
On the other hand, attaining a permanent visa will provide numerous benefits. These includes:
- a right to permanent residence in Australia;
- eligibility for social benefits;
- sponsoring relatives to come to Australia;
- if eligible, become an Australian citizen which will allow for voting rights, and rights to represent Australia in sporting competitions along with applications for jobs in the Australian Army or the Australian Government; and
- permanent residence also provides a higher threshold of protection from Character Cancellations.
When considering the risk of cancellation, the disadvantages of the Subclass 444 Visa and the benefits of permanent residence, pathways to permanent residence may be an option worthwhile exploring.
Pathways to Permanent Residence
There are several pathways available for New Zealand residents in Australia.
Pathway 1 – Skilled Independent Visa
The first pathway would be to go from a Subclass 444 Visa to a Skilled Independent (subclass 189) Visa (New Zealand stream) (“Subclass 189”), followed by an application for Australian Citizenship. The Subclass 189 may be available to any Subclass 444 Visa holders, who:
- have had an income of $53,900 in 3 of the last 5 years;
- has been living in Australia for the past 5 years; and
- meets the mandatory health, character, and security checks.
Pathway 2 – Protected Category Visa holders
The second pathway would be a direct application for Australian Citizenship for Protected Category Visa holders. A Protected Category Visa holder would be those who arrived in Australia with a New Zealand passport, and were either:
- residing in Australia on 26 February 2001; or
- in Australia for 12 months in the 2 years before the 26 February 2001.
This requirement is a strict condition and must be supported through clear evidence.
Pathway 3 – Entry Pre-1994
The third pathway would be to apply for a Resident Return Visa (“RRV”), then apply for Australian Citizenship.
The RRV may be available for New Zealanders who arrived in Australia on a New Zealand passport prior to 1 September 1994—including those who arrived for a short holiday or on a parent’s passport. This is strict requirement and must be supported by evidence.
There are additional special conditions required to be granted a Resident Return Visa requiring the individual to demonstrate ongoing ties to Australia.
If you are a New Zealand citizen residing in Australia with a Subclass 444 Visa, and you are interested in considering pathways to permanent residence, please do not hesitate to contact our office on (07) 3252 0011 to speak to one of our experienced Migration Lawyers.
This article was written by Ervin Hii
 These crimes include genocide, human trafficking, war crime, crimes involving torture or slavery, or crimes against humanity.