Removal or Deportation from Australia: A Civil and Criminal Overlap

The commonality between whether a person is removed or deported from Australia is that in both cases they are forcibly removed from Australia. There are important distinctions and applications between the two mechanisms available to the Minister and the Department of Home Affairs.

In short, removal is an automated process when an unlawful non-citizen is held in immigration detention and has failed to satisfy strict statutory requirements.

Deportation requires a specific deportation order to be made against an Australian permanent resident pursuant to the Migration Act 1958 (Cth) (the Act)

In either case, a person will usually be interviewed prior to being removed or deported from Australia, which can occur while a person is imprisoned.

 

Powers to Detain an Unlawful-Non Citizen

Section 189 of the Act states that if an officer knows or reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person.

An unlawful non-citizen is a person who does not hold a valid or current visa or is not an Australian citizen.

Generally, the person will be held in immigration detention until they are removed from Australia or are granted a visa. Unlawful non-citizens may only apply for certain visas as prescribed by the Migration Regulation 1994 (Cth).

 

Obtaining ‘Bail’ in Immigration Detention

An unlawful non-citizen may apply for a bridging visa to be granted which enables them to be released from the detention on the basis of obtaining a substantive visa or to prepare to willingly leave Australia.

If the bridging visa is refused, the matter can be reviewed by the Administrative Appeals Tribunal.

 

Removal Process

Section 198 of the Act empowers an officer in various circumstances to remove as soon as reasonably practicable an unlawful non-citizen from Australia. Commonly, Section 198 (6) applies if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa; and

(c) the grant of the visa has been refused and the application has been finally determined or the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa.

Depending on the circumstance, a person may be removed by a monitored or supervised departure or by departmental arrangements.

 

The Deportation Process

The Minister may exercise a discretionary power pursuant to the Act to deport a non-citizen, including permanent residents and particular New Zealand citizens from Australia if you:

• Have been convicted of an offence in Australia;
  • Are a permanent resident of Australia or citizen of New Zealand; and
  • Have spent a period, or cumulative periods in Australia of less than ten (10) years (which does not include time spent served in prison); or

• Have been convicted of certain serious offence as prescribed under the Act; or

• Are considered a security threat to Australia.

Subsequently, the Minister will execute a deportation order, unless the order is revoked, for the person’s deportation.

 

Deportation Order

A person may be arrested without a warrant if a deportation order has been issued. Importantly, If a person is arrested that is not the same person in the deportation order they have 48 hours to notify the authorities.

 

Liability for Costs of Removal or Deportation

Pursuant to Section 210 of the Act, if a person is removed or deported, that person is liable to pay the Commonwealth the costs of the removal or deportation.

 

Exclusionary Periods from Australia and Waivers

An exclusionary period may apply to a person that is either removed or deported. The length of the period that a person is banned from re-entering into Australia will depend on the provision of the Act used to remove or deport the person from Australia.

An exclusionary period can either be for:

• 1 year;
• 3 years; or
• Permanent

In most cases, a permanent ban will apply in circumstances where a person’s visa was cancelled on failing the character test or the person was deported from Australia due to a criminal offence.

A waiver for the exclusionary period may be granted, except where a person is permanently banned from re-entering Australia. Generally, there must be compelling or compassionate circumstances to set aside the period and grant the person a visa.

 

Appealing Removal or Deportation from Australia

As removal is an automated process, there is generally no appeal process at this stage. Importantly, if you have received a Notice of Cancellation from the Minister you should focus on seeking legal to ascertain whether you can appeal the notice.

If the Minister has issued a deportation order against a permanent resident convicted of a crime who has spent a period or cumulative period of less than 10 years in Australia, the person may apply appeal in the Administrative Appeals Tribunal.

The Tribunal must make a decision afresh to that of the Minister and supply a statement of reasons of reasons within 28 days of the application being lodged with the Tribunal.

 

Important Considerations

Before a person is removed or deported from Australia they will receive a Notice of Cancellation from the Minister.

It is important that carefully consider the contents of the letter and make note of strict time periods that apply.

Appealing a cancellation in the context of a criminal conviction by the Minister is discussed in our related article: > Visa Cancellations and Criminal Convictions – How does a criminal conviction affect my visa status? 

 

We Can Help

We recommend that you seek independent legal advice as soon as possible to ensure that you are not subject to removal or deportation from Australia. We have a team of expert migration lawyers who are ready to assit with your matter.

Potts Lawyers offer a free 20 minute consultation to discuss you matter with our Director of Litigation and registered migration agent (MARN 1910298), Craig DoRozario.

Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.