A 501 deportee is put onto a repatriation flight from Sydney to New Zealand in 2021. Photo / Supplied
A former Melbourne cafe owner who was deported to New Zealand two months ago following a drug relapse - despite having lived in Australia since he was 6 years old - may soon get to return to the country he calls home.
But two other New Zealand citizens - a 41-year-old who moved to Australia when he was 13 and a 43-year-old who moved to Australia when he was 21 - both failed in their recent bids with the Administrative Appeals Tribunal of Australia to overturn their 501 deportee designations.
The tribunal noted during a hearing in Perth last month, which Brendon Michael James attended via audio-visual feed from Auckland, that the former entrepreneur's situation is somewhat unusual because he's already been deported and "now has some first-hand experience" of adjusting to New Zealand after decades in Australia.
James, 41, said the transition has been difficult due to missing his family, the "astronomical" cost of living in New Zealand and the way he has been treated since his arrival.
"The 501 is being a leper over here," he told the tribunal of New Zealand. "It's a mark, it's an automatic branding of - that you're a s*** person.
"That's just what comes along in the moniker and I open my mouth, people hear my accent, that's the giveaway. You know, people look at my resume and go, 'Hang on a minute ... why would you come back to New Zealand after 36 years?' People aren't stupid.
"You know, 501 is such a hot button topic here in New Zealand, constantly in the media, constantly in the news, because unfortunately, the majority of people that do get sent back under this legislation are bad people."
James' visa was cancelled by Australian authorities in October after he was sentenced to prison on methamphetamine charges and deemed not to pass the character test due to what was described as a substantial criminal history.
But in his report overturning the deportation, tribunal deputy president Stephen Boyle took a different view, describing James as having "led a law-abiding and productive life" except for two "short periods of offending" which were 10 years apart.
"I find that some greater tolerance would be afforded by the Australian community in the present case due to the fact that the applicant arrived as a child and has spent the majority of his life gainfully employed and contributing to the Australian community," Boyle said.
James first found himself in immigration officials' crosshairs after his conviction in 2011 in Perth for armed robbery. He has spiralled into methamphetamine addiction after breaking up with his fiance in 2010 and ended up answering an ad from a transsexual sex worker intending to rob the person.
"On entering the room, the young man offered you a drink and asked about the payment of money," a judge noted at his sentencing. "At that point you removed an electronic stun gun from your shorts and held it to this man's neck, saying, 'This is a taser and it's real. Now, I want all your money.' Fearing for his safety, the person handed over $640 in cash."
But the judge also described the case as one of the "rare occasions in which the sentence should be suspended" for such a crime because James appeared to be earnestly addressing his addiction issues.
"It was nothing more than an opportunity to get money to buy more drugs," James told the tribunal of the crime. "I'm still to this day disgusted and ashamed in myself and the fear that I caused that person and the damage."
Immigration officials warned him the following year that while his visa wouldn't be revoked then, he was in jeopardy of being deported if he offended again.
He then went nine years without further convictions, moving to Melbourne to start the cafe, which he named after his young nephew, and moving back to Perth three years later after selling the business and forming a consultancy company for struggling cafés.
But he fell back into drug dependency after the Covid-19 pandemic caused major disruptions in his work and personal life, he said. He began selling methamphetamine to fuel his own habit.
Police found just over 14 grams of methamphetamine in a sock that was thrown out the window of his car during a traffic stop. Another 9.18 grams were found during a subsequent search of his home. He was convicted in March 2021 of possessing a prohibited weapon and drug paraphernalia and sentenced again last August to 14 months' prison on methamphetamine supply and sale charges.
At the final sentencing, the judge described him as a low-level user-dealer.
The judge noted positive assessments from officials at two drug rehabilitation programmes, one stating she had seen "significant progress in Brendon's growth and capacity for change" and another noting his "high expectations" for the defendant's ability to continue improving his behaviours.
James agreed that he's motivated to put his drug abuse days behind him, telling the tribunal that he had learned his lesson the hard way after nine months in prison followed by "the most inhumane place possibly on the face of this earth, that being immigration detention".
After weighing the evidence and James' statement, tribunal member Boyle said James struck him "as an honest person who recognises his vulnerability and has done as much as he can to address those vulnerabilities". While James continues to not pass the character test, he should be allowed to return, Boyle said.
In other recent decisions, however, the tribunal has rejected the requests by two other men to have their deportation orders overturned.
Joshua John Bayly, 41, has lived in Australia since he was 13 years old. But within two years of his arrival he started building a criminal record that has now grown to over 100 offences including domestic violence, drug trafficking and more than 70 traffic offences, authorities noted.
He had already had his visa cancelled once following a 2018 drug dealing conviction but managed to overturn the decision on appeal. But since then he's racked up 12 more convictions, including another drug supply charge, the tribunal noted in its decision to reject his latest appeal.
Advocates for Bayly noted he had an abusive upbringing, mental health issues that were long unaddressed and a learning disability that resulted in limited literacy. He began using drugs around the age of 14 and injecting methamphetamine around 16, he said.
He also had two children, ages 7 and 10, who the tribunal acknowledged were likely to suffer "a significant adverse effect" if further estranged from their father due to deportation.
But the tribunal noted that the children will have been used to his long absences due to frequent incarceration. It also noted Bayly's "total failure of basic parenting" when he was sentenced in 2017 for using the home where his children lived as a meth trafficking outlet.
The tribunal also declined to overturn the deportation of Gavin Michael Tong, 43, who was 21 years old when he moved to Australia.
"[I] consider myself to be Australian," he told the tribunal in a written statement. "All members of my family, including my children, are Australian citizens. I have nothing/no one in New Zealand - my life is here in Australia."
Authorities described Tonga as having a substantial criminal record that included drug-related offences, obstructing or assaulting police officers, repeatedly driving without a license and repeated bail breaches.
Tonga said he had learned his lesson from a recent prison stint, during which a psychiatrist helped diagnose him with schizophrenia for the first time. His criminal offending resulted from his battle with his mental health, work injuries and drug and alcohol issues, but he's now taking medication to help with the mental health issues and addressing his substance abuse issues, he said.
He asked to be given a second chance, noting that Australia was a nation built on second chances. His request was declined.
"The tribunal accepts that the applicant will face deeply personal challenges returning to his home country," the decision read. "He will be physically isolated from all members of his immediate and extended family ... and this is likely to be a painful adjustment for him as well as for his loved ones in Australia.
"He has spent nearly all of his adult working life in Australia. It follows that he has no support network of any description in New Zealand, and he will very much have to fend for himself, and there is a real potential for his mental health to suffer. He will need to pay close preventative attention to his mental health, and drug abstinence."
The man then went on to kick a police officer while being walked to a patrol car.