Deportation and Removal from Australia

A person can be forcibly removed from Australia in two ways, either by deportation or by removal. Deportation of a person requires a specific deportation order to be made under section 206 of the Migration Act 1958 and it is used in relation to Australian permanent residents only. In contrast, removal is an automatic process used for those held in immigration detention. It does not require any specific order to be made.

People who are removed from Australia are unlawful non-citizens who do not have a valid visa to be in Australia. This may be because their visa has expired or been cancelled. If you are an unlawful non-citizen the Department of Home Affairs will generally detain you in immigration detention and remove you from Australia as soon as practicable. You can avoid being removed by departing Australia voluntarily.

If you are deported or removed from Australia, you may be subject to restrictions on returning to the country. This may be a permanent ban on re-entry or a ban on applying for a visa for a specified length of time.

Deportation

Deportation is the process used for permanent residents and certain New Zealand citizens who are not Australian citizens. You can be deported if:

• you have been convicted of certain serious crimes and received a prison sentence; or
• you are considered to be a threat to the security of Australia.

Before a deportation order is made on either of these grounds, you will be given the opportunity to appeal against your adverse security assessment.

Deportation process

If a deportation order has been issued against you, you may be arrested without a warrant. If you are not the person named in the deportation order, you must say so within 48 hours. You will then be taken before a court for that question to be decided.

If you are serving a term of imprisonment, details of your deportation will be finalised before your release from prison. You will usually be taken straight from prison to the airport and must leave immediately. Otherwise, you will be held in immigration detention prior to being taken to the airport as soon as is practicable.

You will have to pay the costs of your deportation.

Removal

You can be removed from Australia if you are an unlawful non-citizen. This can happen if:

• you remain in Australia after your temporary visa has expired;
• you have entered Australia without a visa;
• you entered Australia by misrepresentation. This includes entering with a passport or other travel document that was forged or obtained by false representation, or entering with a passenger card which contained false or misleading information;
• you have breached a condition of your visa and your visa has been cancelled; or
• your visa has been cancelled as you no longer meet the character test and you did not provide representations to have the cancellation revoked.

Removal process

If the police know or reasonably suspect that you are an unlawful non-citizen, they must arrest and detain you. You will be kept in immigration detention until removed from Australia or granted a visa. The Migration Regulations 1994 contain restrictions on which visas unlawful non-citizens are able to apply for.

If you are not in immigration detention, you may be able to apply for a Bridging Visa ‘E’ which allows you to do the following:

• Make arrangements to leave Australia;
• Apply for a substantive visa;
• Wait for the outcome of a review of a decision to refuse a substantive visa; or
• Ask the minister to intervene and grant a visa on a discretionary basis.

If your visa has been cancelled because you no longer meet the character test, you will have to be detained and cannot apply for a Bridging Visa E until all requests to have the cancellation revoked have been decided.

If your application for a Bridging Visa E is refused, you cannot make another application for 30 days. If your application is granted, you will be permitted to remain in Australia for a specified period of time. Otherwise, unless you leave voluntarily, you will be arrested and removed from Australia.

Appeals

If the minister personally cancelled your visa on the grounds of not meeting the character test, you may have a right to judicial review.

Appeals to the Administrative Appeals Tribunal – Migration and Refugee Division may be available if the cancellation of the visa was in relation to non-compliance of your visa conditions.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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