Last updated 30 September 2024

The Migration Act 1958 (Cth) (Migration Act) uses the term ‘deportation to signify the forced expulsion of a non-citizen from Australia for reasons relating to criminality and security (pt 2 div 9 Migration Act). The term, ‘removal’ refers to the forced expulsion of a non-citizen who does not hold a current visa. Most expulsions in Australia take place in the form of removals.

Non-citizens may become unlawful in a number of ways including by over-staying a temporary visa, by breaching a visa condition and having their visa cancelled (ss 109, 116, 128, 501 Migration Act), or by virtue of consequential cancellation (i.e. they were a dependant of a visa holder whose visa has been cancelled (s 140 Migration Act)).

Unlawful non-citizens are subject to detention and removal from Australia under ss 189 and 198 of the Migration Act. All persons in Australia who do not have Australian citizenship are non-citizens. Where a non-citizen does not hold a valid visa, that non-citizen is unlawful and therefore subject to detention and removal.

Bridging visa option for unlawful non-citizens of Australia

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 (s 196(1)(c) Migration Act). A successful application for a bridging visa can also prevent a person from becoming an unlawful non-citizen and being detained on that basis.

Where an eligible non-citizen in immigration detention applies for a bridging visa (class WE and WF), and the Minister for Immigration, Citizenship and Multicultural Affairs (minister) does not make a decision within a prescribed time period 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) Migration Act, reg 2.24 Migration Regulations 1994 (Cth) (Migration Regulations)). The prescribed time period is between two and ninety days depending on the circumstances.

A person refused a bridging visa may have a right to seek review of the decision to the ART. The ART must decide the application within seven working days, or longer by agreement with the applicant.

Bridging visas keep a non-citizen lawful until a substantive visa is granted. Bridging visas cannot be applied for in immigration clearance (i.e. at the airport or port of arrival).

Procedure before a person is deported or removed

An officer must detain a person whom they know, or reasonably suspect, to be an unlawful non-citizen (s 189 Migration Act). There is no obligation to bring a person detained as an unlawful non-citizen before a court. They must then be removed from Australia as soon as reasonably practicable (s 198 Migration Act).

Once a person is detained under s 189, an officer must ensure that the person is made aware of the fact that they may apply for a visa within two working days (ss 194, 195(1)(a) Migration Act). 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) Migration Act). A person applying for a visa outside these time limits is severely restricted in the type of visa they can apply for (s 195(2) Migration Act). In any event, if no visa is granted, the person must be removed from Australia.

Where a person is in immigration detention, they must be afforded all reasonable facilities for obtaining legal advice or taking legal proceedings (s 256 Migration Act).

In practice, laws relating to the detention and removal of unlawful non-citizens are not applied uniformly. Unauthorised air arrivals and those who overstay temporary visas but retain a valid passport are the most likely to be detained and removed, either voluntarily or involuntarily. People who came to Australia by boat seeking asylum, but were not found to engage Australia’s protection obligations, yet have lived in Australia for a decade or more, are less likely to be detained or removed, even if they do not have a valid bridging visa. This is likely because s 197C of the Migration Act places restrictions on the removal power, and obligates an assessment of protection claims prior to removal.

A person who believes that they may be an unlawful non-citizen or otherwise subject to removal or deportation should obtain urgent legal advice.

Deportation or removal at the expiration of a prison sentence

Where a permanent resident is serving a term of imprisonment, the execution of a deportation order will usually be delayed until the deportee has served the applicable term of imprisonment. Upon release, the person will either be detained pending deportation or, if their visa has been cancelled on character grounds but their offending or security assessment does not trigger the deportation power, detained pending removal.

As with removals, whenever anyone claims that they would be likely to suffer persecution or significant harm if deported to their homeland, these factors must be considered by the Department of Home Affairs prior to deportation. A protection visa application may also be able to be lodged, to decide whether the person should be recognised as engaging Australia’s protection obligations. As a result, until recently, a situation had developed where people who engaged Australia’s protection obligations could not be removed or deported but they nevertheless could not meet the character requirements of a protection visa. They therefore remained in detention, for a potentially indefinite period. Stateless persons who failed the character test were in a similar position. They could not be granted a visa but neither could they be removed to their home country.

In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the High Court of Australia clarified that if there is no real prospect of a person’s removal being practicable in the reasonably foreseeable future, they cannot continue to be detained under s 189 of the Migration Act. Those who benefit from that judgment include stateless persons for whom there is no country to remove them to, and people who have been assessed as engaging Australia’s protection obligations. Following the above mentioned case, individuals in those groups are granted subclass 070 removal pending bridging visas with strict conditions, such as curfews and ankle bracelets, rather than being detained indefinitely.

Removal or deportation costs

Where the Commonwealth makes arrangements for a person to be removed or deported to a place outside Australia, that person is generally required to pay to the Commonwealth an amount equal to the passage money plus other potential charges (s 210 Migration Act). 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 Migration Act).

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 (e.g. for permanent residents convicted of crimes and either deported under s 200 of the Migration Act or removed after cancellation of their permanent residence on the basis of specific paragraphs of ss 501, 501A or 501B of the Migration Act) to 12 months (e.g. for a spouse removed on the basis of their spouse’s conduct).

Non-permanent bans can be waived for the purpose of entry for one specific visa if the minister is satisfied that in the particular case there are compassionate or compelling circumstances justifying such a waiver (schs 4, 5 Migration Regulations). No exclusion periods will apply to those entering as refugee or humanitarian visa holders, or holders of a carer partner, orphan relative, child or adoption visa.