Last updated 23 January 2017

Unlawful non-citizens are subject to detention and removal from Australia under ss 189 and 198 of the Migration Act 1958 (Cth) (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. A non-citizen is unlawful and therefore subject to detention and removal where that non-citizen does not hold a valid visa as soon as practicable.

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 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)). People who provide false or incomplete information in a visa application or on a passenger card, or provide a bogus document to the Department of Immigration and Border Protection (DIBP) or the Administrative Appeals Tribunal (AAT) may also later have their visa cancelled when the irregularity is detected (ss 101–109 Migration Act). A visa can also be cancelled on the basis of character (s 501 Migration Act). There are a number of other provisions for cancellation in the Migration Act (see ss 109, 113C, 116, 128, 133A, 134, 134B, 137J, 140, 500A, 501A, 501B).

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 and Border Protection (the 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 directly to the AAT. The AAT 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).

Deportation for committing a crime

Permanent residents who are not Australian citizens may be deported if, within 10 years of permanent residence in Australia, they are convicted in Australia of any offence for which they are sentenced to imprisonment for one year or longer (ss 200, 201 Migration Act).

However, this section is rarely used as the minister and the DIBP delegates have the power under s 501 of the Migration Act to cancel a person’s permanent visa (no matter how long that person has lived in Australia), which thereupon makes the person an unlawful non-citizen who must be removed.

The DIBP policy sets out two primary considerations in a decision about whether or not to remove a person:

  • the expectations of the Australian community
  • where the potential deportee has children, the best interests of those children.

Other considerations include the degree of hardship that would be suffered by the deportee and/or Australian citizens or permanent residents if the deportation occurred (General Direction No. 9, Australia’s Criminal Deportation Policy made under s 499 of the Migration Act).

Procedure before a person is deported or removed

There is a very big difference between the legal frameworks that apply to a removal and a deportation. Deportations are rarely effected. Most people are subject to removal and elect to leave voluntarily.

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. Such a person must be kept in immigration detention (including community detention) until they are either removed from Australia under ss 189 and 198 of the Migration Act 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 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.

Deportation or removal of permanent residents

A person will usually be interviewed before a deportation order is signed. A permanent resident who has committed crimes and is the subject of a deportation order may be arrested without warrant (s 253(1) Migration Act). If a permanent resident has a deportation order signed against them, that person becomes a deportee and, if detained, must be told of the reasons for detention. If requested, the detaining officer must also give the person particulars of the deportation order (s 253(3) Migration Act).

If the person claims, within 48 hours, that they are not the person in respect of whom the deportation order is in force, the person must be brought before a magistrate or other prescribed authority within 48 hours or as soon as practicable thereafter (s 253(4) Migration Act). 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 (s 253 Migration Act).

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

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).

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. Should the date of deportation not coincide with the date of release, a person, on being released, may be held in immigration detention (s 253 Migration Act). If deportation is being considered and the period of immigration detention appears likely to be prolonged, a person may be released from immigration detention on conditions such as that they report regularly to the DIBP and notify of any change of address (s 253(9) Migration Act).

The DIBP policy states that consideration of cancellation of a visa on character grounds should be delayed until 12 to 18 months before the visa holder’s earliest expected date of release from prison (s 501 Migration Act). Once a visa has been cancelled, the person becomes an unlawful non-citizen who is subject to immigration detention and removal.

Whenever anyone claims that they would be likely to suffer persecution or significant harm if deported to their homeland, these factors must be taken into account in any decision to cancel a visa or deport a permanent resident. A Protection visa application may also be able to be lodged, to decide whether the person should be recognised as a refugee and whether they are entitled to the protection under the Convention Relating to the Status of Refugees or to complementary protection.

As stated above, the Minister for Immigration and Border Protection and DIBP delegates have the power under s 501 of the Migration Act to cancel a person’s permanent visa, and this power is routinely used in preference to effect removal as opposed to deportation at the expiry of prison sentences.

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).