Travellers who have criminal convictions, even from decades ago, often need to complete additional checks before they head to the airport. Photo / 123rf
Travellers who have criminal convictions, even from decades ago, often need to complete additional checks before they head to the airport. Photo / 123rf
An Auckland couple’s 50th wedding anniversary trip turned “traumatic” after the husband was refused entry into Australia because of an assault conviction from 1971.
On November 21, the wife, 69, and husband, 72, flew to Brisbane to celebrate their golden anniversary by visiting family and thenspending 11 days on the Gold Coast. The pair did not wish to be named.
“Everything was going according to plan, until we flew into Brisbane airport,” the woman told the Herald.
After landing at 7.10am, the pair proceeded to border security, where the man disclosed his criminal history, which involved two charges for physical assault 53 years ago.
The charges were related to two fights he got into when he was around 19 years old, which his wife described as similar to “a typical bar brawl where everyone joined in”. He was sentenced to nine months in prison and was released after six, determined to turn his life around.
Decades later, at the airport, the couple were not nervous; they had visited Australia several times before and always declared his record without issue, including on a trip through Brisbane Airport in July 2023. This time, however, he was asked to proceed to an immigration desk.
The couple were stopped at Brisbane International Airport. Photo / BNE
After an hour, the couple claimed two Australian Border Force officers asked him to follow them to an interview room for questioning and told the woman she could not stay and must proceed through arrivals.
“We were both taken aback because [the officer] then said that he might probably be leaving to go back to New Zealand,” she said.
An Australian Border Force spokesperson told the Herald they could not comment on specific cases because of privacy considerations.
Confused about the issue and unable to fully understand because of an hearing impairment, the woman said the situation was challenging physically and emotionally and she struggled to manage all of their luggage without support.
“Here I was stranded by myself in a big airport, with all my bags and duty-free. I was sick to my stomach at the thought of my husband being detained,” she said.
She claims to have waited four hours without any information from border officials, then received a text message from her husband saying he had been refused entry. She later discovered he was booked on a 6pm flight back to New Zealand and returned to their Henderson home at around 3am on November 22.
Rattled by the events, she paid almost $300 to fly home early but could not make it back for their 50th wedding anniversary on November 23.
“We had to spend our special day apart and that sucks and hurts. I still feel sad when I think of him in that room and the way they left me.”
Visas in Australia
Most countries have immigration requirements that demand a visa before arrival or provide visas on arrival or visa-free travel for citizens of certain countries, said Professor Kris Gledhill, of Auckland University of Technology’s Law School.
“It is also common for there to be exceptions to visa-free or visa-on-arrival programmes for people with criminal convictions. Usually, they have to follow different processes,” he added.
AUT's Professor Kris Gledhill. Photo / Supplied
In New Zealand, visitors with a criminal record require additional checks and Australian citizens without a record must fulfil the “good character” requirement to use New Zealand’s visa-free regime.
Likewise, most Kiwis automatically get a temporary Special Category visa (SCV) when they arrive in Australia, but they must not be a behaviour concern non-citizen (BCNC).
The husband was classed as a BCNC because he had “been convicted of two or more crimes and sentenced to imprisonment for periods that add up to at least one year”, according to a letter from Australian Border Force, seen by the Herald.
The couple remain adamant his prison sentences were “concurrent” which meant the judge allowed him to serve them simultaneously, which resulted in a nine-month prison sentence, of which he had to serve only six.
“This brings us to the now-notorious section 501 of the Migration Act 1958, which has been used to deport many people from Australia who grew up there (the ’501s'),” Gledhill said.
“Section 501(7A) was added by the Migration Amendment (Character and General Visa Cancellation) Act 2014 to indicate that concurrent sentences are to be added up,” Gledhill said.
“So, a nine-month sentence for one offence and a three-month concurrent sentence is now counted as 12 months and so means that the character test is failed.”
Since clean slate legislation only applied domestically, how long ago a crime was committed was irrelevant, he added.
The husband said it was hurtful that a life dedicated to his family and community could be less relevant than a conviction from his teenage years.
“I know laws are laws, but this time I feel I was really let down because of something I regretfully did all those years ago,” he said.
Travellers with a criminal record will often need to complete additional checks. Photo / 123rf
Can you visit Australia with a criminal record?
This did not mean people with a criminal record could not visit Australia, Gledhill clarified, but they should apply for a visa in advance because they could not rely on visa-upon-arrival provisions.
Australian Border Force said it “encourages New Zealand citizens wishing to enter Australia with past criminal convictions to apply for a visa and be assessed prior to their departure for Australia”.
So, how did the husband travel to Australia previously without issue? There’s a possibility it was down to luck.
“The thing about complex legal provisions is that much will turn on the particular immigration officer you present your passport to, whether they have remembered the provisions requiring them to add up concurrent sentences and so on,” Gledhill explained.
