Who may be removed from Australia?
Unlawful non-citizens are subject to automatic removal from Australia under the Migration A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.. All persons without Australian citizenship who have entered Australia, or arrived in Australia intending to enter, either for a temporary or permanent stay, are non-citizens. Where a non-citizen is a permanent resident, the removal power does not apply unless their permanent residence is cancelled and they thereby become ‘unlawful’.
Why is a person removed from Australia?
The majority of people removed are unlawful non-citizens. Non-citizens become ‘unlawful’ for several reasons, most commonly by over-staying their temporary visas or by breaching the condition of their A permit that allows a person who is not a citizen to stay in a country on certain conditions, for the length of time stated in the visa., which often prohibits work.
Some permanent residents can be deported if they commit a crime (see ‘When is a person deported for committing a crime?’, below).
Expelling a non-citizen from a country because they do not have a legal right to remain there. They might have been convicted of a serious crime, or be regarded as a threat to national security. and removal are essentially the same thing, although deportation can only be used on permanent residents who commit serious crimes within the first 10 years of their entry and removal is used for unlawful non-citizens, who can be permanent residents whom the minister has stripped of their permanent status by cancelling their visas under section 501 of the Migration Act for being of ‘bad character’. Deportation needs a specific order under the Migration Act, while removal takes place automatically.
Entering Australia without a visa
Anyone who enters or remains in Australia without a visa is considered to be an unlawful non-citizen and is subject to Required by law to be done; a law that must be strictly complied with. Under mandatory reporting, people in particular jobs to tell a government agency if they know an offence is being committed – for example, doctors and teachers must report child abuse. Mandatory sentencing requires judges to give an automatic jail term for certain offences. To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. and eventual removal unless a visa is granted (s 189 Migration Act).
Entry by Making a statement or doing something that is false, to try to get someone to do something they would not otherwise do, for example buy goods of poor quality.
People who enter Australia with a certificate, passport or visa that was not issued to them, or was forged or obtained by false representation, or with a passenger card containing information that is false or misleading in a Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. particular, may have their visa cancelled when the irregularity is detected (s 109).
Anyone who enters Australia without disclosing certain information may have their visa cancelled. A person applying to enter Australia must complete a passenger card. The questions on the card require the person to inform Home Affairs if they:
- are suffering from tuberculosis;
- have previously been convicted of a crime or crimes in Australia or in any other country;
- have previously been charged with a crime and either found guilty of committing it while of unsound mind or acquitted on the ground that it was committed while of unsound mind;
- have previously been deported, excluded or removed from Australia or another country; or
- owe the Commonwealth a Money that is owed by one person or business to another..
See section 506(3) of the Migration Act and regulation 3.02 of the Migration Regulations.
Normally, passengers in transit and ships’ crew are not required to have visas. In-transit passengers who do not proceed to their ticketed destination and ships’ crew who desert become unlawful non-citizens. As such they are liable to detention and removal.
Expiry of a temporary visa
A person whose visa has expired or been cancelled becomes an unlawful non-citizen. The person A document that sets out what a person wants to happen to their money and other property after they die. be arrested and removed from Australia unless a further visa is granted. If an unlawful non-citizen who has remained in Australia after the expiry or cancellation of a visa applies for and is granted a further visa, they must be released from Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds..
Removal or deportation from Australia and maintenance costs
Where the Commonwealth makes arrangements for a person removed or deported to be conveyed to a place outside Australia, that person is required to pay to the Commonwealth an amount equal to the passage money, plus other charges payable in respect of the A document used to transfer real property from one person to another. Similar to a transfer of land registered with Land Victoria, but applicable only to the tiny percentage of old system title land that is not under the Torrens title system. See also certificate of title. (s 210 Migration Act).
Where a person who is being removed – or in respect of whom a deportation order has been made – is kept in custody in a state or territory pending deportation, that person is liable to pay to the Commonwealth an amount equal to the cost of Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. during that period (s 209). Departmental officers are also able to seize valuables of people being removed or deported and apply them towards the The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. of removal or deportation (s 224).
When is a person deported for committing a crime?
Permanent residents who are not Australian citizens may be deported if, within 10 years of entry, they are convicted in Australia of any A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). for which they are sentenced to imprisonment for one year or longer (s 201 Migration Act). However, this section is now rarely used because the minister and Home Affairs finds it more convenient to use the very draconian powers under section 501 of the Act to ‘cancel’ a person’s permanent visa (no matter how long that person has lived in Australia), which thereupon makes the person an unlawful non-citizen who must be ‘removed’.
The deportation order or cancellation decision is usually signed during a term of imprisonment or immediately upon the expiration of a term of imprisonment. In practice, only those who have committed offences punishable by more than 12 months’ imprisonment are deported or removed. The minister considers the most serious offences to include crimes of violence, offences involving injury to or corruption of young people, sex offences against children, and Trading people or illegal products such as guns, drugs or ivory, often across borders, for commercial reward. in or distribution of drugs. If a person has been sentenced to 12 months’ imprisonment or more, section 501 deems that person to be of bad character, and the onus is then shifted to the applicant to show otherwise (see s 501).
Even conduct that is not a criminal offence can be used by the minister to cancel a permanent visa under section 501. This draconian ‘character’ power has been used increasingly by government ministers over the past 10 years in situations where the minister or their delegate believes the ‘public interest’ is served. Ominously, ministers who ‘personally’ use the cancellation power, rather than have their delegate make the decision, are only answerable to parliament, because the personal use of the power strips the person of review rights before AAT (s 500(1)(b)).
One new provision, section 501(3A), was added to the Migration Act on 11 and 12 December 2014 and this stipulates the mandatory cancellation of permanent residence to those undergoing a sentence of imprisonment of 12 months or more, or who have committed a sexual offence against a child (activated merely by notification and without Rules that courts, other dispute settlement bodies and government officials must follow to ensure that decisions are fair to all parties. Examples include the requirement that decision-makers act fairly, without bias, and the right of all parties involved in a case to present their side of a dispute. See also administrative law.).
This power has been operating to pull in large numbers of people who would not previously have been the subject of cancellation. Upon cancellation, an applicant must apply to the minister (within 28 days) for the Cancellation of a previous law or legal document. For example, when a new will is made, the old one is usually revoked. of such cancellation and the restoration of their permanent residence.
 (3A) The minister must cancel a visa that has been granted to a person if:
a the minister is satisfied that the person does not pass the character test because of the operation of:
i paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii paragraph (6)(e) (sexually based offences involving a child); and
b the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth,
a state or a territory.
Certain matters are considered before deportation, or cancellation and removal under section 501 on character grounds, or where mandatory cancellation has occurred under section 501(3A).
Home Affairs obtains information about the following matters before deporting a person:
- the nature of the offence;
- the circumstances of the commission of the offence;
- the view of the offence expressed by the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. before which the A person who has committed a crime. appeared;
- the nature of the penalty;
- the extent of rehabilitation of the offender;
- the prospects of recidivism (repeated criminal offences);
- the necessity to prevent or inhibit the commission of like offences by other persons;
- the previous criminal history of the offender;
- the public interest;
- the circumstances of the family or of other persons having a relationship with the offender; and/or
- the obligations of the Commonwealth under the United Nations Convention relating to the Status of Refugees (1951).
Other grounds for deportation
The following grounds in the Migration Act have been used only rarely to deport people:
- conduct in Australia or elsewhere of a non-citizen within 10 years of permanent entry which, in the opinion of the minister, is such that it constitutes a threat to the Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. of the Commonwealth (s 202); and
- conviction as a non-citizen of treason, treachery, sedition or other crimes against the state as set out in certain sections of the Crimes Act 1914 (Cth) (s 203).
What is the procedure before a person is deported or removed?
A person will usually be interviewed before a deportation order is signed or a removal takes place. The interviewing officer should be informed as accurately as possible of dates of any entry or re-entry into Australia, and particularly of the circumstances of family or other relationships in Australia, including any de facto spouse. The interview may occur while a person is serving a term of imprisonment.
An officer must arrest a person whom they know, or reasonably suspect, to be an unlawful non-citizen (s 189). A permanent resident who has committed crimes and is the subject of a deportation order may be arrested without A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate.. What happens then depends upon whether the person is an unlawful non-citizen (subject to removal) or a permanent resident (subject to deportation).
Unlawful non-citizens detained
There is no obligation to bring a person detained as an unlawful non-citizen before a court. Such a person must be kept in immigration detention until they are either removed from Australia or granted a visa.
Once a person is detained under section 189, an officer must ensure that the person is made aware of the fact that they may apply for a visa within two working days of that notice (s 195(1)(a)). If the detainee informs an officer in writing within those two working days of their intention to apply, a further five working days are allowed (s 195(1)(b)).
A person applying for a visa outside these time limits is severely restricted in the type of visa that can be applied for (s 195(2)).
In any event, if no visa is granted, the person must be removed from Australia.
Permanent residents subject to deportation or cancellation/removal
If a permanent resident has a deportation order signed against them, that person becomes a ‘deportee’ and, if arrested, must be told of the reasons for detention and, if requested, the detaining officer must give the person particulars of the deportation order (s 253(3)).
If the person claims, within 48 hours, that they are not the person in respect of whom the deportation order is in force, the person must be brought before a judge, magistrate or other prescribed authority within 48 hours or as soon as practicable thereafter (s 253(4)). If the authority is satisfied that there are reasonable grounds for supposing the person to be a deportee, the person may be held in detention pending deportation.
However, ‘deportation’ under section 201 is rarely used these days. Rather, the ‘cancellation’ powers under section 501 for bad character are used, effectively side-stepping the oversight of the courts, because a ‘removee’ is merely an unlawful non-citizen whom the Migration Act says ‘must’ be section 501 removed.
The detention and removal of several Australian citizens (e.g. Cornelia Rau) in the past occurred without any court oversight because officers suspected them to be unlawful non-citizens.
A person who believes that they may be an unlawful non-citizen or otherwise subject to deportation should obtain legal advice before attending an interview with a Home Affairs officer.
Where a person is detained under the Migration Act and is in the ‘migration zone’ (namely, Australia), the A person who makes decisions about medical treatment for a person who cannot give informed consent to it themselves. See also informed consent. for such detention must afford all reasonable facilities for obtaining legal advice or taking legal proceedings (s 256). However, if a person has been refused immigration clearance at a port or airport, and has been detained, there is no obligation to allow facilities for legal advice or the making of a visa application before removal (s 198).
Bridging visas: Immigration ‘bail’
An unlawful non-citizen who has been detained may apply for a bridging visa that, if granted, has the effect of releasing them from detention (usually pending Something of value, such as money, given by one person to another person as part of a contract. of the grant of a substantive visa) (s 196(1)(c) Migration Act). Where an eligible non-citizen in immigration detention applies for a bridging visa (class E), and the minister does not make a decision within two working days to either grant or refuse it, the non-citizen is taken to have been granted a bridging visa at the end of that period and must be released from detention (s 75(1)).
It is also possible to apply for a bridging visa on the basis that the non-citizen needs to be out of detention (e.g. to sell a car or furniture or a business) prior to leaving the country and no substantive visa is involved. A person refused a bridging visa has a right to seek review of the decision directly to the Administrative Appeals A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (AAT), and the AAT must decide the application within seven working days, or longer, by agreement with the applicant (see ‘Time limits for lodging review’, below).
Bridging visas are different from substantive visas; the former keeps a non-citizen ‘lawful’ until the latter is granted. Bridging visas cannot be applied for in ‘immigration clearance’ (i.e. at the airport or port of arrival).
Deportation or removal at the expiration of prison sentence
Where a permanent resident is serving a term of imprisonment the question of deportation or, far more likely, cancellation (including mandatory cancellation under section 501(3A) and removal is usually considered shortly before A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement.. Should cancellation and removal not be arranged to coincide with the date of release, a person, on being released, must be held in immigration detention if cancellation has occurred and there is no right of release (s 501F).
What happens if a deportee or removee fears persecution in their homeland?
Whenever anyone alleges that they would be likely to suffer persecution if deported to their homeland, additional factors arise for consideration. A refugee application can be lodged, and the case is then referred to the refugee section of Home Affairs and, on The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision., to the AAT to To promise to do or not do something, such as returning to court on a certain day, or to hand a document over to another party in a legal proceeding. An undertaking is enforceable by attachment or like an injunction. investigations and decide whether the person should be recognised as a refugee and whether they are entitled to the protection of the United Nations Convention relating to the Status of Refugees (1951).
Consequences of deportation or removal
Schedules 4 and 5 of the Migration Regulations set out the various periods for which people deported or removed from Australia are banned from returning. These periods range from permanent bans (for permanent residents convicted of crimes and either deported under section 201 or removed after cancellation of their permanent residence under section 501) to 12 months (for tourists who allowed their visas to expire, but left Australia other than as a result of action by Home Affairs officers). Non-permanent bans can be lifted if the minister is satisfied that in the particular case there are ‘compassionate or compelling’ circumstances justifying their waiver (see sch 5).
The process of allowing an accused person in one country to be taken into custody and sent for trial in another country where it is alleged they committed an offence. When a person is to be extradited, police in the country of residence take them into custody and hand them over to law enforcement officers from the country where the offence was committed. is the formal surrender by one nation or state to another of a person A person who has been charged with a crime. Also known as a defendant. or convicted of an offence outside its territory and within the territorial The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. of the other, which is competent to try and punish the person and demands the surrender. In Australia, extradition is most commonly applied between states. Extradition to and from Australia is less frequent.
The law governing extradition to and from Australia is contained in the Extradition Act 1988 (Cth) (‘Extradition Act’). Usually, extradition between Australia and foreign states requires the existence of a treaty before the duty to ‘surrender’ arises.
First, a request must come from that other country to the Australian Attorney-General, accompanied by supporting Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. that the person has committed a crime known to Australian law in that country.
If the Attorney-General is of the opinion that the person is an ‘extraditable person’, proceedings are commenced by the issue of a provisional warrant under section 12 of the Extradition Act by an Australian magistrate.
The person, once arrested, must be brought before the magistrate for a The time and place at which a court or tribunal hears the parties argue their case and makes a decision. and decision on ‘surrender’ of the person to that other country.
Extradition between Australia and New Zealand is dealt with separately under the Act (ss 28–39). New Zealand is in a special position, being regarded almost as an Australian state rather than a Commonwealth country for the purpose of extradition.
Extradition is not deportation or removal
Extradition, deportation and removal are three distinct processes, each serving a different purpose.
Extradition serves to assist in bringing criminals to justice by returning a fugitive to a jurisdiction able to try and punish the offender. In extradition, the ultimate destination of the fugitive is of vital concern to the requesting state.
Deportation and removal refer to the procedure by which a country ejects from its territory illegal or unwanted persons. It is based on the virtually unrestricted power of a state to exclude foreign nationals from entering its territory, and additionally an ill-defined power to order them to leave once they have entered. The ultimate destination of the deportee or removee is usually not of concern to the deporting or removing state.