Removal and deportation

Contributed by Michael Clothier and Mary-Anne Kenny and current to 1 September 2005

WHO MAY BE REMOVED?

Unlawful non-citizens are subject to removal from Australia for reasons given in 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. However, where a non-citizen is a permanent resident the removal power does not apply (although the deportation power might).

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 crimes (see ‘WHEN IS A PERSON DEPORTED FOR COMMITTING A CRIME?’, below). Deportation and removal are essentially the same thing, although it is harder to return to Australia if you have been deported. Deportation is used for permanent residents and removal is used for unlawful non-citizens. Deportation needs a specific order under the 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)

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 with 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 who is applying to enter Australia must inform the Department if he or she:

(1) is suffering from tuberculosis;
(2) has previously been convicted of a crime or crimes and has been sentenced to death, life imprisonment or imprisonment for not less than one year;
(3) has 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) has previously been deported, excluded or removed from Australia or another country; or
(5) owes the Commonwealth $1,000 or more (reg. 3.02 of the Regulations).

“Crime” in this context refers to an offence punishable by death, imprisonment for life or for a period of not less than six months. Normally, passengers in transit and ship’s crew are not required to have visas. In-transit passengers who do not proceed to their ticketed destination and ship’s crew who desert become unlawful non-citizens. As such they are liable to detention and removal.

Expiry of a Temporary Visa

As previously mentioned, a person whose visa has expired or been cancelled becomes an unlawful non-citizen. The person must be detained 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, the non-citizen 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 liable to pay to the Commonwealth an amount equal to the passage money, plus other charges payable in respect of the conveyance (s.210).

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 have been convicted in Australia of any offence for which they have been sentenced to imprisonment for one year or longer.

The deportation order 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 serious offences are deported. The Minister considers 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 (s.201). Certain serious offences now “deem” you to be a person of bad character, and the onus is now on the applicant to show otherwise (see s.501).

MATTERS CONSIDERED BEFORE DEPORTATION FOR COMMITTING A CRIME

Before deporting a person, the Department of Immigration obtains information about:

(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 noncitizen 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 flamboyant 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 he or she knows, or reasonably suspects, 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 noncitizen (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. They must be kept in immigration detention until 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 he or she 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 his or her 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 which 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

If a permanent resident has a deportation order signed against him or her, 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 he or she is 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.

A person who believes that he or she may be an unlawful non-citizen or otherwise subject to deportation should obtain legal advice prior to attending an interview with an officer of the Department.

Where a person is in detention 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 – BAIL

Where an unlawful non-citizen has been detained, that person may apply for a bridging visa which, if granted, has the effect of releasing the person from detention (usually pending consideration of the grant of a substantive visa) (s.196(1)(c)). Where an eligible non-citizen who is in immigration detention makes an application 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 (for example, 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 Migration Review Tribunal, and the Tribunal must decide the application within seven working days, or longer, by agreement with the applicant (see ‘Time limits for lodging review’, below).

Bridging visas should be distinguished from substantive visas. The former visa keeps a noncitizen “lawful” until the latter is granted. Bridging visas cannot be applied for in “immigration clearance” (that is, at the airport or port of arrival).

DEPORTATION ON RELEASE FROM PRISON

Where a possible deportee is serving a term of imprisonment the question of deportation is considered shortly before release. Should deportation not be arranged to coincide with the date of release, a person, on being released, may be held in custody. In practice, if the period of custody appears likely to be protracted, a person may be released on condition that they report regularly to the Department and notify any change of address (s.253(9)).

RECONSIDERATION OF A DEPORTATION ORDER

While there is no provision in the Act which permits the execution of a deportation order to be deferred, in practice, where a lengthy period of time has elapsed between the making of a deportation order and the taking into custody of the deportee, the Minister may reconsider an earlier decision. This is particularly so for persons who were illegally in Australia before the new Migration Act amendments came into operation on 19 December 1989 (see s.206 in Sch. 2).

WHAT HAPPENS IF A DEPORTEE OR REMOVEE FEARS PERSECUTION IN HIS OR HER HOMELAND?

Whenever anyone alleges that he or she would be likely to suffer persecution if deported to his or her homeland, additional factors arise for consideration. A protection visa application can be lodged, and the case is then referred to the Onshore Protection section of the Department and, on appeal, to the Refugee Review Tribunal to undertake investigations and decide whether the person should be recognised as a refugee and whether the person is entitled to the protection of the Convention Relating to the Status of Refugees.

Note, however, that 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.

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) to 12 months (for tourists who allowed their visas to expire, but left Australia other than as a result of action by officers of the Department).

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). 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 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 refers to the procedure by which a country ejects from its territory illegal or unwanted persons (see above). 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 immaterial to the deporting or removing state.