501 deportee allowed to stay in Australia despite likelihood that he will keep offending

The man's most recent conviction was for entering a house with intent to steal. Photo / 123RF

A 501 deportee who moved to Australia as a baby has avoided being sent back to New Zealand after a burglary, even though authorities believe it likely he will keep committing crime.

An Australian appeals tribunal has decided to revoke Brent Gibbons' deportation, saying it would have a "severe and devastating" effect on the man's mental health.

It also says that the Sydney-based man is estranged from family members in New Zealand and "completely attached to Australia" in all areas of his life.

Gibbons was born in New Zealand in 1967 and moved to Australia with his family the next year.

In April this year, he was advised that his visa was being cancelled under Section 501 of the Australian Migration Act because of his criminal record.

His most recent conviction was for entering a house with intent to steal, for which he was sentenced to 10 months in prison in June last year. He had more than a dozen other convictions for similar offending.

Gibbons successfully took his case to the Australian Administrative Appeals Tribunal, which has now determined that the invalid's beneficiary with a history of mental health problems should be allowed to stay.

"The tribunal is in no doubt that should the applicant be returned to New Zealand to live on a permanent basis – that is, effectively to be deported – it would be such a blow to his mental health that it is likely to have severe and quite devastating consequences."

The tribunal, which heard from Gibbons in person, said his mental health was "severely compromised" with a schizoaffective disorder, and that this was behind his criminal history, including dishonesty offending and possession of prohibited drugs.

"Simply, the applicant should be regarded as being less culpable for his criminal conduct because of his mental health condition."

The tribunal said it recognised that Gibbons was likely to reoffend in future, but "not at a serious level that will likely affect other members of the community to any great degree".

"The level of seriousness of the applicant's offending … is very much at the lower end of the scale of criminal conduct, lessened even more so by the tribunal's view that the applicant's offending should be viewed against the background of mental illness."

Brent Gibbons will be allowed to stay in Australia, where he has lived since he was 11 months old. Photo / NZME

The tribunal was told that Gibbons moved to Australia with his family when he was an infant, but that his mother and sister were now living back in New Zealand and he did not have any contact with his Kiwi family.

He still had a brother in Australia, but their relationship was "complex" and the tribunal did not believe that the brother would provide Gibbons with any support.

He had been on a benefit and "incapable of working" since 2012.

The tribunal said that, apart from two years back in New Zealand, Gibbons had lived in Australia since he was 11 months old and regarded Australia as his home.

"He is, in all aspects of his life, completely attached to Australia."

The tribunal said that attachment combined with his lessened culpability due to mental health outweighed other considerations, and worked in Gibbons' favour.

It revoked the cancellation of his visa.

The question of Section 501 deportations, which have sent more than 2500 New Zealand citizens back from Australia since 2015, has soured relations between the two countries under successive governments.

It featured in discussions between Prime Minister Jacinda Ardern and her recently elected Australian counterpart, Anthony Albanese, last month.

Albanese has promised a "reset" in transtasman relations, with an easier path for Kiwis to gain Australian citizenship and a "common sense" approach to the deportation of people who have few connections to New Zealand.

However, Gibbons does not appear to have been the beneficiary of any new approach in Australian thinking.

The decision to revoke his deportation was made by the independent appeals tribunal after earlier being refused by a government official.