Deportation from Australia and removal from Australia are the two ways that a non-citizen can be forcibly removed from the country. An order for an Australian permanent resident’s deportation can be made under section 206 of the Migration Act 1958. In contrast, removal is an automatic process that does not require an order to be made and it is used for unlawful non-citizens. This page deals with deportation and removal from Australia.
Removal
Non-citizens who do not have a valid visa to be in Australia may be subject to removal. A person may be an unlawful non-citizen because their valid visa has expired or been cancelled, or because they never have had a valid visa.
A person who is an unlawful non-citizen will generally be detained in immigration detention pending their removal from Australia. A person’s removal from Australia will occur when they no longer have any appeals or applications pending.
A person can avoid being removed by departing Australia voluntarily.
Removal process
If the police know or suspect that a person is an unlawful non-citizen, they must arrest and detain the person. The person will then be held in immigration detention until they are removed from Australia or until they are granted a visa.
A person who is not in immigration detention but is at risk of becoming an unlawful non-citizen may be able to apply for a Bridging Visa E. This visa allows a person to:
- make arrangements to leave the country;
- apply for a substantive visa;
- wait for a decision to be reviewed or for the outcome on a visa application; or
- appeal to the Minister for intervention on a discretionary basis.
If a person’s visa has been cancelled on character grounds, they cannot make an application for a Bridging Visa E.
Deportation
Deportation is the process used for permanent residents and certain New Zealand citizens who are not Australian citizens. A person can be deported if:
- they have been convicted of a serious crimes (such as a child sex offence) or they have received a significant prison sentence; or
- they are a threat to the security of Australia.
Before a deportation order is made, the person will be given the opportunity to appeal against their visa cancelation.
Deportation process
If a deportation order has been issued for a person, they may be arrested without a warrant.
If the person who is arrested is not the person named in the deportation order, they have 48 hours to bring this to the attention of the authorities. They will then be taken before a court for the issue to be decided.
If the person is serving a sentence of imprisonment, details of their deportation will be finalised before their release. They will usually be taken directly from prison to the airport and must leave immediately. Alternately, they may be held in immigration detention prior to being taken to the airport.
The person deported will be required to pay the costs of their deportation.
Consequences of deportation and removal
If a person is deported or removed from Australia, they may also be subject to restrictions on returning. The person may be permanently banned from re-entering Australia or a ban on applying for Australian visas for a specified time, depending on the reason for the deportation.
If a person has their visa cancelled on character grounds and is subsequently removed or deported, they will be permanently barred from applying for or being granted an Australia visa.
Appeals
If a person has their visa cancelled, they may appeal against that decision. An appeal must be initiated within 28 days of the date of the decision.
If a visa is cancelled because of non-compliance with visa conditions, the visa holder may appeal to the Administrative Appeals Tribunal – Migration and Refugee Division.
If a visa is cancelled on character grounds, the visa holder may request to have the cancellation revoked by the Department of Hoe Affairs. If this request is refused by a delegate of the Minister, the decision may be appealed to the AAT. However, if the decision was made by the Minister personally, there is no right of appeal to the AAT.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
