Deportation And Removal

A person can be forcibly removed from Australia in one of two ways: deportation or removal. Deportation requires a specific order to be made under the Migration Act 1958 and applies to Australian permanent residents only. Removal applies to people held in immigration detention and no order is required.

When a person is removed or deported from Australia, there may be restrictions on their rights to return. There could be a permanent ban on re-entry or a ban on applying for a visa for a specified period of time.

Deportation

Deportation applies to permanent residents and certain New Zealand citizens. A person can be deported if they:

• have been convicted of certain serious crimes and received a prison sentence;
• are considered to be a threat to Australia’s security (they have received an adverse security assessment).

If a deportation order has been issued, a person can be arrested without a warrant. If the person is in prison, they will usually be taken directly from prison to the airport and must leave the country immediately.

A person who has been deported can be banned from returning permanently or for a specified period of time.

Removal

Removal applies to unlawful non-citizens. A person becomes an unlawful non-citizen when:

• their visa has expired and they remain in Australia;
• they have entered Australia without a visa;
• they entered Australia by misrepresentation, such as by using a passport or other travel document that was false or obtained by false representation, or by entering false or misleading information on a passenger card;
• they breach a visa condition;
• their visa has been cancelled.

The Department of Home Affairs usually detains an unlawful non-citizen in immigration detention, pending removal from the country as soon as possible. An unlawful non-citizen does have the right to leave Australia voluntarily before being taken into immigration detention.

The person can be removed to their country of origin or to any country they have  right to enter. The Federal Government can recover the costs associated with their removal.

Visa cancellation

Section 116 of the Act lists the general reasons a visa can be cancelled:

• the visa was granted based on facts or circumstances which did not exist or no longer exist;
• non-compliance with a visa condition;
• the visa holder may be a risk to the health, safety or good order of a person or Australians in general.

The Act also contains specific instances where a visa may be cancelled. For instance, a cancellation can be made on character grounds. Section 501 mandates the Home Affairs Minister must cancel a visa if the visa holder does not pass the character test. A person does not pass the test if they have a substantial criminal record, which means they have been sentenced to death, life in prison, or imprisonment for 12 months or more; or if they have been convicted, in Australia or abroad, of a sex offence involving a child. The visa must also be cancelled if the person is serving a full-time sentence in prison.

The person can apply to the department to revoke the cancellation. They must apply within 28 days of the date of the cancellation letter. If this application is unsuccessful, the person may be eligible to apply to the Administrative Appeals Tribunal for review of the department’s decision. If the person is in Australia, they are given up to nine days to appeal after notification. The tribunal cannot review a decision made by the minister personally.

Visa expiration

Once a person’s visa expires, and they stay in Australia, they become an unlawful non-citizen. If a person has overstayed their visa by less than 28 days, they may be able to apply to stay in Australia if they are in a relationship with a citizen or permanent resident and meet other criteria.

If a person has overstayed their visa by more than 28 days, any future application for an Australian visa will be subject to an exclusion period of 3 years. After the 3-year ban ends, if the person wants to apply for another visa, they must pay any debts they owe to the Federal Government, such as the costs of detaining and removing them from the country.

A person may be able to apply for a bridging visa while the department finalises their matter.

For advice or representation in any legal matter, please contact Armstrong Legal.