This article will outline provisions for deportation under the Migration Act 1958. Deportation matters are a significant aspect of immigration law. It deals with the forced removal of foreign individuals from Australia. Deportation is the legal process through which the government forcibly removes a foreign individual from a country due to various reasons, such as:
- Visa violations
- Illegal entry
- Criminal activities; or
- Posing a threat to national security
Under Section 200 of the Act, the Minister can enforce the deportation of a non-citizen. This can help maintain the integrity of Australia’s immigration system and the protection of its citizens. In this article, we will explore deportation under the Migration Act and the relevance of seeking legal advice in migration cases.
Section 201: Deportation of Non-Citizens in Australia for Less Than 10 Years Who Are Convicted of Crimes
Section 201 of deportation under the Migration Act refers to the deportation of non-citizens convicted of crimes. It outlines the criteria that the government considers to decide whether to proceed with deportation.
1. Conviction of an Offence: This section applies to a person who is a non-citizen and has been convicted of an offence in Australia. This is the case either before or after the commencement of this Section.
2. Length of Residence: The deportation provisions come into effect if, at the time of committing the offence the person was a non-citizen who had been residing in Australia as a permanent resident for:
- A period of less than 10 years; or
- The total periods of their stays as permanent residents in Australia added together amount to less than 10 years.
Additionally, the provisions apply to citizens of New Zealand in Australia as exempt non-citizens or special category visa holders:
- For a period of less than 10 years; or
- The total periods of their stays as an exempt non-citizen or special category visa holder in Australia added together amount to less than 10 years; or
- Any combination of these capacities.
3. Nature of Offence: The provisions of this section specifically apply if the offence for which the person has received criminal conviction is punishable by:
- Death
- Life imprisonment; or
- Imprisonment for a period of not less than one year
Section 202: Deportation of Non-Citizens Upon Security Grounds
Section 202 of deportation under the Migration Act pertains to the deportation of non-citizens on security grounds. Let’s break it down:
1. Threat to Security: Section 200 applies to non-citizens if the Minister believes that the conduct of a non-citizen:
- Poses, or has posed, a threat to security; and
- The Minister has received an adverse security assessment from the Australian Security Intelligence Organisation regarding that non-citizen
2. Review of Security Assessment: Section 200 does not apply to the non-citizen if:
- The conditions of subsection (1) of Section 202 apply to a non-citizen. However, there is one condition. A certificate issued under paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 must not cover the adverse security assessment; and
- The non-citizen applies to the Tribunal for a review of the security assessment. Non-citizens must apply within 30 days of receiving notice of the assessment. The Tribunal must also find that the security assessment should not have been adverse.
3. Review by Tribunal with Certificate: Section 200 does not apply to the non-citizen unless the Tribunal confirms the assessment if:
- Subsection (1) applies to a non-citizen, and a certificate under paragraph 38 (2)(a) of the ASIO Act covers adverse security assessment, and
- The Attorney-General has required the Tribunal to review the assessment as per section 65 of that Act
Deportation Under the Migration Act: Additional Provisions of Section 202
4. Notice and Deportation: The Minister must provide a notice to the person, pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act. The notice will inform them of the adverse security assessment made for the purposes of Number 1. The notice must state that the assessment was made for:
- The purpose of Subsection (1) of Section 202; and
- That the person may face deportation under section 200 because of section 202.
5. Time Limit and Review: A person may apply to the Tribunal for a review of an adverse security assessment that cannot exceed 28 days. This condition appears in subsection 29(2) of the Administrative Appeals Tribunal Act 1975.
“Adverse security assessment,” “security assessment,” and “Tribunal” have the same meanings as in Part IV of the Australian Security Intelligence Organisation Act. “Organisation” refers to the Australian Security Intelligence Organisation. Section 4 of the Australian Security Intelligence Organisation Act defines “Security.”
Section 203: Deportation of Non-Citizens Who Are Convicted of Certain Serious Offences
The Section 203 of deportation under the Migration Act relates to the deportation of non-citizens convicted of certain serious offences. Here’s a breakdown of the section:
1. Conviction of Serious Offences: This section applies if a person who is a non-citizen faces a criminal conviction of an offence in Australia. This is the case either before or after the commencement of this subsection. The person must not have been an Australian citizen at the time of committing the offence. These are offences against:
(ia) Division 80 or 82 of the Criminal Code.
(ib) Section 83.1 (advocating mutiny) or 83.2 (assisting prisoners of war to escape) of the Criminal Code.
(ii) Section 6 of the Crimes Act 1914 that relates to an offence mentioned in subparagraph (ia) or (ib)
(iia) Section 11.1 or 11.5 of the Criminal Code that relates to an offence mentioned in subparagraph (ia) or (ib)
(iii) A law of a State or any internal or external Territory that is prescribed as an offence
In case of these conditions, subject to this section, section 200 of the Migration Act 1958 applies to the non-citizen.
2. Notice and Request for Consideration: Section 200 does not apply to the non-citizen under this section. This is the case unless the Minister serves a notice on the non-citizen. The purpose of this notice is to inform them of the proposal to order their deportation based on the specified ground in the notice. The non-citizen has 30 days from receipt of the Minister’s notice to request that their case be considered by a Commissioner appointed.
Section 203: Additional Provisions
Here are additional provisions under Section 203 of deportation under the Migration Act:
3. Appearance Before a Commissioner: The Minister can summon the non-citizen in writing to appear before the specified Commissioner at the specified time and place. This is true if the non-citizen duly requests consideration by a Commissioner.
4. Appointment of Commissioner: A Commissioner for the purposes of this section is:
- Governor-General-appointed; and
- Must be a person who is or has been a Judge of a Federal Court or the Supreme Court of a State or Territory; or
- A barrister or solicitor of the High Court or the Supreme Court of a State or Territory with at least 5 years of standing.
5. Commissioner’s Investigation and Report: The Commissioner is responsible for:
- Conducting a thorough investigation into the matter specified in the notice; and
- Reporting to the Minister whether they believe the ground specified in the notice has been established.
The investigation is not bound by legal forms or rules of evidence. Additionally, the Commissioner can gather information as they see fit.
6. Conditions for Application of Section 200: Section 200 does not apply to the non-citizen under this section if:
- The non-citizen does not request consideration by a Commissioner in accordance with the notice.
- The non-citizen, after being summoned to appear before a Commissioner, fails to appear at the specified time and place.
- A Commissioner reports that the ground specified in the notice has been established.
Seeking Legal Advice About Deportation Under the Migration Act
Seeking legal help from a migration lawyer is of utmost importance when facing deportation proceedings. JB Solicitors, a trusted and experienced law firm specialising in migration law matters, can provide invaluable legal assistance.
JB Solicitors’ knowledge of the Migration Act and migration laws ensures that we handle your case with care and expertise.
Contact us today for more information about deportation under the Migration Act.
