Removal and deportation

Based on the contribution of Michael Clothier for The Law Handbook 2016, published by Fitzroy Legal Service, as amended by KevinKardirgamar and current to 1 May 2016

Who may be removed?

Unlawful non-citizens are subject to automatic removal from Australia under the Migration Act. 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?

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 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).

Deportation 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 an unlawful non-citizen and is subject to mandatory arrest and eventual removal unless a visa is granted (s 189 Migration Act).

Entry by misrepresentation

People who enter Australia with a certificate, passport, visa or other document that was not issued to them, or was forged or obtained by false representation, or a passenger card containing information that is false or misleading in a material particular, may later have their visa cancelled when the irregularity is detected (s 109).

Anyone who enters Australia without disclosing certain information may later have their visa cancelled. A person applying to enter Australia must complete a 'passenger card' in accordance with the directions on it. The questions on the card require the person to inform DIBP if they:

1. are suffering from tuberculosis;
2. have previously been convicted of a crime or crimes in Australia or in any other country;
3. 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;
4. have previously been deported, excluded or removed from Australia or another country; or
5. owe the Commonwealth a debt.

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 must be arrested and eventually 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 custody.

Removal or deportation 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 conveyance (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 maintenance during that period (s 209). Departmental officers are also able to seize valuables of people being removed or deported and apply them towards the 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 offence 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 DIBP find it more convenient to use the wide-ranging powers of the Minister 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'. Those who have been sentenced to imprisonment for at least 12 months or have been convicted of certain prescribed crimes (e.g. involving children or those of a sexual nature) face mandatory cancellation of their visas. Conviction for other crimes render cancellation a possibility. Delegates of the Minister are required to take into account a number of factors relating to the visa holder's individual circumstances in making a decision on whether to cancel their visa.

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 trafficking 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 does not amount to a criminal offence can be used by the minister to cancel a permanent visa under section 501, and this '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. Ministers who 'personally' use the cancellation power under section 501, 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)). Section 501(3A) was inserted into the Migration Act on 11 and 12 December 2014 and this allows for mandatory cancellation of permanent residence to those undergoing a sentence of imprisonment of 12 months or more, (activated merely by notification and without natural justice) whereby an applicant must then apply to the minister (within 28 days) for the revocation of such cancellation.

According to s 501(3A), the minister must cancel a visa that has been granted to a person if:

Certain matters are considered before deportation under section 201 for committing a crime, or cancellation and removal under section 501 on character grounds, or where mandatory cancellation has occured under section 501(3A).

The DIBP obtains information about the following matters before deporting a person:

1. the nature of the offence;
2. the circumstances of the commission of the offence;
3. the view of the offence expressed by the court before which the offender appeared;
4. the nature of the penalty;
5. the extent of rehabilitation of the offender;
6. the prospects of recidivism (repeated criminal offences);
7. the necessity to prevent or inhibit the commission of like offences by other persons;
8. the previous criminal history of the offender;
9. the public interest;
10. the circumstances of the family or of other persons having a relationship with the offender; and/or
11. the obligations of the Commonwealth under the Convention Relating to the Status of Refugees.

Other grounds for deportation

The following grounds in the Migration Act have been used only rarely to deport people:

1. 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 security of the Commonwealth (s 202); and
2. 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 warrant. 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 under section 189

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 this section, 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 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 an officer of DIBP.

Where a person is detained under the Migration Act and is in the 'migration zone' (namely, Australia), the person responsible 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 which, if granted, has the effect of releasing them from detention (usually pending consideration 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 Tribunal (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 release. 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 likely 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 DIBP and, on appeal, to the AAT to undertake investigations and decide whether the person should be recognised as a refugee and whether they are entitled to the protection of the Convention Relating to the Status of Refugees.

NOTE

Certain articles of the Refugee Convention state that if the applicant commits a serious non-political crime in the receiving country, that country does not have to offer protection to them.

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 s 201 or removed after cancellation of their permanent residence under s 501) to 12 months (for tourists who allowed their visas to expire, but left Australia other than as a result of action by officers of DIBP).

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).

Extradition

Extradition refers to the formal surrender by one nation or state to another of a person accused or convicted of an offence outside its own territory and within the territorial jurisdiction of the other, which is competent to try and punish the person and demands the surrender (see O'Connell, D, International Law in Australia, 2nd edn, edited by K W Ryan, Law Book Co., 1984, p. 720).

In Australia, extradition is most commonly applied between states. Extradition to and from Australia is less frequent.

Applicable law

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 evidence 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 hearing 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.