**3. Australian Deportations during COVID-19**

Australia's migration policy has 'unorthodox and punishing procedures for people appealing against cancellation decisions, prolonged and uncertain periods of immigration detention, and family separation, among other human rights violations' (Billings 2019, p. 12). These practices match Stumpf (2013) two 'faces' of crimmigration: criminalising asylum seekers who come to Australia via boat including their subsequent detention and conditions; and the detention and deportation from Australia of non-citizens with prior criminal convictions or of 'poor character', in an attempt to pre-empt the perceived threat of future criminal activity.

Visa cancellations leading to immigration detention and deportation are a central feature of the immigration framework and manifest in (s)501 of the Migration Act 1958, enabling the cancellation of visas for those perceived to be of poor character, who have association with criminal groups, and those who have been sentenced more than a cumulative 12 months in prison. These elements increase the severity of the law and 'evidencing a political will to crack down on non-citizens who offend, or who might offend' (Billings and Hoang 2019, p. 121). Visa cancellation does not take into account factors other than perceived criminality or character, such as if the non-citizen arrived as a child or was born in Australia, which the courts have claimed creates undue harm to the non-citizen as they do not have any ties to their country of origin: Australia often deports non-citizens who have grown up in Australia and ostensibly have 'learnt' their behaviour in Australia (Billings and Hoang 2019).

Australia has typically deported on average 951 persons per annum under s501 since the 2014 amendments were enacted, deporting an increased 1021 persons during the 2019/20 and another 554 in the six months to 30 December 2020—the year of COVID-19 lockdowns (Home Affairs 2021a). This continuation of deportation during a global pandemic, when borders were otherwise closed, shows a prioritisation of the securitisation of migration over the material health threat of COVID-19. However, deportations are just one indicator of the severe and restrictive conditions faced by migrants during this period.

During the COVID-19 pandemic, migrants in Australia were faced with amplified challenges. Migrants were required to answer questions regarding their nationality and language during the vaccine roll-out, which has been highlighted as possibly creating data that will result in social stigma for particular ethnic groups (Dalzell 2021). Many migrants residing in Australia were not entitled to financial support from the governmen<sup>t</sup> through the COVID-19 period (and subsequently in the 2021 post-COVID budget the waiting period for migrants to access financial benefits was increased to four years resident in Australia). Therefore, many migrants faced unemployment, underpayment and wage theft due to economic fallout of COVID-19—highlighting the already precarious status of migrants, particularly those in casual or at-risk employment (Aryal Lees and Niner 2021). For example, migrants on temporary student visas had to work multiple casual and/or

high-risk jobs and were fearful of admitting to authorities when they had breached public health regulations, likely out of fear for immigration-related repercussions. In one case, a Spanish national on a graduate visa lied to police, during contact tracing during a bout of community transmission of the virus, about working in a second casual job in a pizza shop on top of his quarantine job and being a vector, sparking a three-day lockdown in South Australia.

In many Australian states, not complying with COVID-19 public health regulations became a criminal offence (Boon-Kuo et al. 2020). Therefore, crimmigration-related repercussions occurred: a French national was deported under s501 for organising a party of over 1000 people which did not comply with COVID-19 regulations (Lamb et al. 2021). At the extreme end of this, those who desperately wanted to return home but were restricted by closed borders and limited commercial flights, sometimes resorted to behaving 'inappropriately' to provoke their forced removal by authorities via deportation; however, in one instance 'a [seasonal] worker did not ge<sup>t</sup> to return home with his team in the June repatriation flights due to waiting for a pending court case—therefore his actions backfired' (Bailey 2020, p. 71).

During COVID-19, prior to their removal deportees were subjected to even tighter restrictions. In addition to existing motels, hotel apartments, and detention centres, during the COVID-19 period the Department of Home Affairs sought new Alternative Places of Detention including hospitals, aged care homes, and mental health facilities (Eddie 2021). Within detention, people were further isolated from society by having visitors denied (Doran 2020). Their deportations were also delayed and detainees received limited communications from authorities about their deportation dates: for at least one detainee, this delay and uncertainty around his removal had a significant mental health impact and eventuated in suicide (Yu 2020).

The sense of isolation was even more severe for over 200 convicted non-citizens awaiting deportation who were transferred to Christmas Island Detention Centre when it reopened following a 2018 closure unrelated to COVID-19 (Ryan 2020). The August 2020 reopening was blamed upon COVID-19, as the Department of Home Affairs claimed their 'ability to remove unlawful non-citizens from Australia had been curtailed by the coronavirus pandemic' (cited in Karp 2021). However, it appears as though it was inevitable— with the Australian governmen<sup>t</sup> continuing to spend AUD 23 m on the Christmas Island facility in 2019 when it was empty (Burgess 2019). In addition, critics oppose the government's COVID-19 framing—stating that it was actually reopened to stifle public protests regarding detention (which were criminalised during COVID-19), and remove detainees from public view (Blakkarlay 2020; Boon-Kuo et al. 2020).

Detaining migrants on offshore islands, known as Alternative Places of Detention, creates 'microgeographies of sites in the enforcement archipelagos where these exclusions transpire, where migrants enter into extended periods of spatial, temporal, and legal limbo' (Mountz 2020, p. 60). This is not just exclusion from society once in offshore immigration detention, but more practically detainees are also unable to access vital services: in January 2021, riots erupted when convicted non-citizens awaiting deportation were not given their medication for days at a time, internet access and mobile reception to contact legal representation or families, and were kept inside for 22 h per day (Karp 2021). However, this was not simply about cost: advocates argued that the issue was more than just a restriction of services but instead a bigger issue of 'people in a powerless situation being repetitively treated with disrespect and in an inhumane manner' (Payne cited in Karp 2021). The riots were responded to with rubber bullets and gas cannisters, which further polices and militarises detainees in an already-carceral immigration detention situation. Crimmigration describes an increasingly policed approach to immigration procedures, and this is but one example.

Half of s501 deportations for both character and criminal reasons from Australia are to New Zealand, despite New Zealanders only comprising 10% of the non-citizen population (Billings and Hoang 2019). Under COVID-19, this was higher than usual—with 75% of those deported under s501 between March 2020–2021 of New Zealand citizenship, the next highest nationality of deportation being Vietnamese at 6% (Home Affairs 2021b). The Department of Home Affairs stated that 'removals of non-citizens have not stopped as a result of COVID-19, however have significantly slowed since March 2020 due to the availability of commercial flights and the travel restrictions' (cited in Doran 2020): after ceasing on 16 March 2020, Australia recommenced their deportation programme New Zealand in July 2020 (Home Affairs 2021b). The younges<sup>t</sup> s501 deportation ye<sup>t</sup> was deported to New Zealand during this period—a solo 15-year-old—showing the extraordinary action Australia was willing to take, and the urgency by which it wanted to be 'rid' of securitised criminal non-citizens.

The Australian governmen<sup>t</sup> avoided the complexities of limited commercial flights by chartering 'secret' Airbus319s for the purpose, in particular those 'with no markings on its tail except a small Australian flag' (Fabris 2021). The fact that these deportations did not stop, despite almost all other travel being forcibly halted amplifies the securitised nature of these deportations: Australia balanced the risk of criminality (while deportees remained in immigration detention) against the public health threat of COVID-19 transmission through borders and chose to remove non-citizens. The Australian governmen<sup>t</sup> were willing to take exceptional action against a perceived threat, using their own or a chartered plane to remove those they considered a 'crimmigrant other', in a time when all other travel had been halted.

Australia continued to securitise convicted non-citizens on their deportation during the COVID-19 period. The Department of Home Affairs gave exclusive access to a commercial television channel to interview deportees as they crossed the airport tarmac to their departing flight in March 2021. This was not welcomed by deportees, as the questioning was seen to be confrontational and harassing at the point when those leaving were contemplating the loss of their family and homes—'our country doesn't want you, are you excited to go home?' and 'how does it feel to be kicked out of Australia?' (Fabris 2021). To add to the sensationalism and fear-mongering around deportees, in the same coverage, then-Minister for Home Affairs Peter Dutton described the deporting flight of New Zealanders as 'taking the trash out' (cited in Fabris 2021). While this rhetoric may appear gratuitous, it is perceptibly deliberate and intentional. The discourse further securitises and dehumanises deportees, enabling harsher approaches towards them in efforts to manage them as a threat.

### **4. New Zealand Reception of Deportations during COVID-19**

When Australia introduced harsher deportation legislation in 2014, New Zealand received a five-fold increase in returnees per month and has now receives over 2375 returnees since 2015 (McGowan 2021). This created pressure on the New Zealand Government, who publicly alluded to the deportees' criminality and securitised them. In 2015, the then-Prime Minister referred to criminal deportees from Australia as 'rapists' and 'child molesters', despite the majority of New Zealanders in Australian detention for deportation being held on considerably more minor cannabis charges (Stanley 2017). This discourse shows that deportees are unwanted on both sides of their journey—re-securitised as a threat for their perceived levels of criminality by their state of citizenship. The rhetoric worsened during the COVID-19 period—highlighted as deportees were some of the few able to travel despite the restrictions—but is an example of how deportees have for years been perceived to be criminal offenders forevermore.

Further securitised discourse from New Zealand politicians shows that New Zealand society does not consider that all returnees from Australia to be part of New Zealand society, due to their Australian upbringing. In 2020, New Zealand Prime Minister Jacinda Ardern (cited in Remeikis 2020), when speaking to Australian Prime Minister Scott Morrison, stated:

"You have deported more than 2000 individuals, and among them will be genuine Kiwis who do need to learn the consequences of their actions. But among those 2000 are individuals who are too young to become criminals on our watch, they were too young to become patched gang members, too young to be organised criminals. We will own our people. We ask that Australia stops exporting theirs".

The pressure from the Australian deportation policy and New Zealand's apprehensive reception of deportees, was described as 'corrosive' to the Trans-Tasman relationship (Ardern cited in McGowan 2021). Similarly, in 2021 following the 'trash'-talk by an Australian politician, New Zealand COVID-19 Response Minister Chris Hipkins responded that 'we're receiving them because we're obliged to receive them, but it would be wrong to say we're happy about it' (cited in Doran 2020). Through this exclusionary discourse, deportees are being framed by their state of citizenship as an 'other'; therefore, alongside the perceived ongoing criminality (despite their status as otherwise free citizens), deportees remain a 'crimmigrant other' threat, this time in their state of citizenship.

COVID-19 quarantine for returnees was a convergence of issues that illustrated many of the challenges that deportees to New Zealand face. Instead of arriving and being (relatively) free citizens, returnees under s501 from Australia were kept for 14 days in a separate hotel for returned criminal deportees. Hotel quarantine is something that both New Zealand and Australia have put in place to isolate and quarantine incoming arrivals to create a barrier against the public health threat of COVID-19. Loughnan (2020) has made the comparison between the hotels selected for incoming arrivals, and those used to indefinitely detain refugees and asylum seekers in Australia, and has highlighted the complexities around detention and isolation. Similarly, Nethery and Ozguc (2021) have suggested that Australia's hotel quarantine was well accepted because 'Australians have become somewhat conditioned to accept the idea that liberty—at least the liberty of outsiders—should at times take second priority to the national interest' due to existing immigration detention arrangements for refugees, asylum seekers and deportees. No similar research currently exists for New Zealand, but this analysis shows that the public health threat, and threat of the 'crimmigrant other' are both perceived as both unfavourable to national security and require extraordinary actions to mitigate them.

From March 2020, all arrivals to New Zealand were kept in a 14-day Mandatory Isolation and Quarantine (MIQ) due to the public health threat of COVID-19. Returning deportees—colloquially known as '501s'—were also mandated to quarantine for 14 days on arrival to New Zealand. Initially it was proposed that deportees and general arrivals share hotels; however, there was public pushback against shared facilities—with some members of the public suggesting that returned deportees should be kept on military bases (Holland 2020). This framing is suggestive of a crimmigration lens—where immigration enforcement bodies have the privileges of criminal law enforcement bodies and act similarly.

It was then decided that a specific isolation hotel for deportees would be set up, but the selection of the hotel itself was shrouded in secrecy for fear of 'vigilante justice' being served by members of the public (Block 2021). Ultimately, the selected hotel for deportees was different to that of 'regular' travellers, in that it had extra military and security personnel in place; it was surrounded by a tall black fence to isolate it from the public; and it was next to a police station (Sadler and Cropper 2020). Security guards were placed on all floors, and the windows were screwed shut to prevent escape (Block 2021). The extra costs in such measures show that deportees are still considered a significant 'threat' to the state: the state considers that it is appropriate to spend additional resources on securing this threat, even during a public health emergency. By comparison, a citizen with a comparable criminal record, but who had not been deported from another state, would be able to quarantine like any other member of the public. Despite the description of the hotel, responsible Minister Megan Woods had to remind the public to 'bear in mind this is not a prison' regarding managed isolation facilities for returned deportees (RNZ 2020). The specialist '501' MIQ hotel was ultimately decommissioned and returned to

its initial purpose as a general purpose hotel following the opening of the quarantine-free Trans-Tasman Travel Bubble in April 2021. At the time of decommissioning, the MIQ manager stated that 'the hotel has been an excellent facility for these returnees, however it would not currently be suitable for a regular managed isolation facility' (quoted in Block 2021), showing that deportees as a securitised threat were subject to harsher conditions during their isolation simply for the fact that they were deported, compared to 'regular' travellers who posed a material threat of virus contagion.

To ge<sup>t</sup> to the hotels, returnees were placed in vans half-filled with police officers who had met them at the airport (Holland 2020). Police and law enforcement meeting returnees on arrival into New Zealand is a normal practise under the Returning Offenders (Management and Information) Act 2015 (hereby referred to as the ROMI Act); however, the police-escorted ride to the hotel is an additional step. Stanley (2017) has described the ROMI Act as 'the ever-expanding creep of crimmigration', whereby in recognising the criminal deportees as 'dangerous' New Zealand has legislated further restrictions upon them, without regard of status, time served or rehabilitation: the state has re-criminalised returning deportees. Restrictions under the ROMI Act include the ability for law enforcement to request biometric information and DNA from all returning criminal deportees, and subjects them to similar conditions to parole in New Zealand for up to five years following arrival, including reporting to a parole officer, housing and accommodation conditions, and may include special geographical restrictions, electronic monitoring and restrictions on substance abuse. By using these conditions, McHardy (2021, p. 3) argues the ROMI Act has been designed to 'mimic domestic parole arrangements' but is 'being implemented in a way that is more restrictive than the regime for domestic offenders'. The receiving state of deportees is in this situation using a crimmigration approach to convey and securitise the 'threat' of returned deportees. New Zealand has continued to undertake this approach in the face of a public health threat, through both the implementation of the ROMI Act conditions and by the strong presence of law enforcement when escorting of returned deportees to their MIQ hotels.

The states' securitised approach played out in the media who reflected and amplified public fears of the deportees' criminality. There was a significant amount of media coverage of their return and sensationalist commentary created stigma against them. In one case, a deportee absconded from quarantine using a sheet to climb out of a hotel window and propel himself down four levels—he was said to be 'on the loose' for eight hours before turning himself in having 'shot off to grab an L&P' [soda drink] (New Zealand Herald 2020; Block 2021). He was later charged with failing to remain in a managed isolation or quarantine facility for a required period under the COVID-19 Public Health Response Act and Order 2020. The coverage of his escape due to the nature of his arrival in New Zealand was widespread, and made it into international media outlets—this is just one example of the excessive and securitised coverage of deportees entering New Zealand during COVID-19 and any perceived 'bad' behaviour. While the nine escapees prior to the escaped deportee case received some (not as much) media coverage, their reason for return was treated more sympathetically (for example, funeral attendance). Such media framing generated significant public discussion about the return of deportees and their perceived immediate non-compliance with New Zealand laws and thus ongoing criminality.

In a twist on the existing forced migration pathway for deportees, New Zealand politicians have called for the deportation of non-citizens who are non-compliant with New Zealand's tight COVID-19 regulations. Opposition leader Judith Collins, when discussing an Australian who refused COVID-19 testing on arrival, said: 'if a New Zealander went to Australia and refused to ge<sup>t</sup> tested in a MIQ facility, what do you think would happen to them? They'd be back on a plane to New Zealand' (cited in Kurmelovs 2021). This shows how quickly crimmigration approaches can shift into everyday securitisation rhetoric, particularly when there are extenuating circumstances such as public health threats.

### **5. New Zealand Deportations during COVID-19**

While New Zealand's deportation policy is not as severe as that of Australia's s501 criminal deportation policy, New Zealand too deports those who have committed criminal offences, under s157, s160 and s161 of the New Zealand Immigration Act 2009. Between March 2020–2021, New Zealand deported 232 people to at least 15 countries, most prominently China and India (MBIE 2021). Like Australia, while there were a minimal number of deportations (seven total) in April and May 2020 when lockdowns and strict restrictions on movement were in place, deportations did not completely recommence until June 2020 when 31 people were deported in one month (MBIE 2021). Immigration New Zealand do not differentiate in their data between those who are deported for overstaying their visas and those who are deported for criminal offences, stating that 'criminal offenders may be deported for reasons other than their criminal offending, e.g. individuals who were deported as a result of their unlawful status in New Zealand but who may also be criminal offenders' (MBIE 2021).

Of those 232 people, 171 were deported due to unlawfully being in New Zealand by overstaying their visas—a trend in New Zealand deportations more generally (MBIE 2021). The precarious status of migrants on temporary visas is recognised and has been highlighted during the COVID-19 period. Immigration raids continued in sectors which have employed workers without valid visas, leading to deportation (Xia 2021). In addition, many Pacific Islanders residing in New Zealand have been faced with the prospect of overstaying due to closed borders and limited commercial flights during the pandemic—while visa extensions were made available, there were difficulties. Over 100 Tongans fell prey to fraudulent 'residency for cash' scams where they used private providers to attempt to maintain their legal status; however, once it was realised due to their overstaying status, they became fearful of reporting the scam to authorities for fear of arrest and deportation putting them in an even more precarious situation (Hopgood 2021).

Prior to the COVID-19 pandemic, New Zealand did not regularly undertake immigration detention and does not have purpose-built immigration detention centres like Australia does. Normal practice involves deportees being placed on the first available flight to their state of origin. However, during the COVID-19 pandemic, time detained has risen due to limited access to flights. If a flight cannot be obtained within 96 h of a person's release from prison, Warrants of Commitment are required by law to further detain those who present a flight risk or risk of absconding. Warrants of Commitment can last a maximum of 28 days, before authorities must seek a judge to approve another warrant or enable release under certain conditions (New Zealand Police 2020). During the COVID-19 period, this has meant that 14 people (7 of whom were being deported on criminal grounds) were being kept in immigration detention, the longest being 273 days in Christchurch Women's Prison—a facility normally used for criminal incarceration rather than immigration detention (Cardwell 2020). These extreme circumstances go beyond the initial intention of an otherwise short-term detention clause, showing that New Zealand was willing to go to extraordinary lengths to deal with the constructed threat of 'crimmigrant other'.

The New Zealand Government is aware of the concerns regarding Warrants of Commitment, but framed the response as one to closed borders: 'some countries, including some Pacific Island nations, were unwilling to take back their citizens and have limited capacity to manage returning deportees in isolation facilities' (Cardwell 2020). Deportation during COVID-19 became a documented concern for the New Zealand Government by June 2020, as it was realised that Warrants of Commitment were being extended beyond 'the legal obligation to deport identified individuals as soon as possible following their release' while attempting to balance the 'risk that migrants who are liable for deportation may pose to New Zealand communities' (MFAT 2020). One of the ways that this has been mitigated is by the Parole Board who has been 'empathetic and in many cases has agreed to defer granting parole specifically for the purposes of deportation', thereby keeping the to-be-deportee incarcerated in a criminal prison for longer than they may otherwise have been held (MFAT 2020). The so-called 'empathy' is clearly aimed towards the state rather

than the individual incarcerated. An extended carceral state for deportees is another extraordinary securitised measure against the 'crimmigrant other', taken under the auspices of the public health threat but that does not contribute to health outcomes.

While deportations 'have largely been paused' during the COVID-19 period (MFAT 2020), New Zealand Police (2020) reports from May 2020 show that there were 44 people still awaiting criminal deportation to the Pacific region in 2020—with destinations including the small island developing states of Tonga, Samoa, Vanuatu, Kiribati and Tuvalu. This number is building up due to those in prison reaching the ends of their sentences—and it is likely that when deportations are recommenced, there will be large numbers of deportees for small Pacific states to manage. Deportations were eventually made to Tonga and Samoa in June 2020 when seven people were deported, with 18 people deported total deported to both states between April 2020–March 2021 (MBIE 2021). Pacific states are under-resourced to manage reintegration and rehabilitation of deportees, and there are concerns by New Zealand that an 'influx of criminal deportees ... could contribute to the destabilisation of countries facing severe economic crises of their own' due to the impact of COVID-19 (MFAT 2020). The highlighted concern is apt, as it highlights an existing problem that Pacific states are facing—significant numbers of deportees arriving from Australia, New Zealand and the US—in addition to having limited resources to police or socially reintegrate deportees who are culturally and linguistically isolated (McNeill 2021). In addition, the New Zealand Government is balancing criminal deportation places (including police escorts) on planeloads to Pacific states, with the many Pacific peoples who want to return to their home having been stuck during COVID-19 (MFAT 2020). The risk managemen<sup>t</sup> here is not so much about the public health threat to Pacific states, but an issue of capacity.
