Deportation is forcing an unlawful non-citizen to leave a country, usually due to a violation of immigration laws or criminal activities. Australia has a reputation for being a country that welcomes people from all over the world.
However, there are times when the government may deport individuals from the country. Deportation applies to Australian permanent residents as well. A person can be deported if they:
- Have been convicted of certain serious crimes (a substantial criminal record);
- Received a prison sentence;
- Are considered to be a threat to Australia’s security (they have received an adverse security assessment).
Who Can Be Deported?
- Non-citizens who have been sentenced to 12 months or more in prison
- Non-citizens who have been convicted of certain serious offences, such as:
- Treason and sabotage (Division 80 and 82, Criminal Code)
- Advocating mutiny (section 83.1) or assisting prisoners of war to escape (section 83.2, Criminal Code)
- Accessory to any offence against a law of the Commonwealth (section 6, Crimes Act 1914)
- Attempt to commit a criminal offence (section 11.1) and conspiracy to commit an offence (section 11.5, Criminal Code)
- An offence against a law of a State or of any external Territory
- Unlawful non-citizens who pose a risk to national security
In addition to criminal convictions, a non-citizen’s temporary visa breach can result in deportation. This can include:
- working in a job that is not permitted under their valid visa,
- overstaying their valid visa, or
- committing other visa violations.
Legislations Related to Deportation
The Migration Act 1958
The Migration Act 1958 empowers the government to detain and deport non-citizens who are not valid Australian visa holders. The Act also provides guidelines for the detention and deportation process, including the rights of the detained party and the procedures to follow.
The Migration Regulations 1994
The Migration Regulations 1994 supports the Migration Act 1958. The Regulations provide detailed guidance on implementing the Act, including the criteria for different types of visas and the process for appealing a visa refusal or cancellation. The Regulations also outline the grounds for the detention of a person, such as if they have breached their visa conditions or if they pose a threat to national security.
The Australian Citizenship Act 2007
The Australian Citizenship Act 2007 is the legislation that regulates citizenship in Australia. The Act provides guidelines for the acquisition, loss, and renunciation of citizenship, as well as the rights and obligations of citizens. The Act also allows for the cancellation of citizenship if a person obtains citizenship fraudulently or engages in terrorist activities.
Support Services Available for Immigrants
Counselling and Mental Health Services
It is essential to seek support from qualified professionals who can provide counselling in dealing with the mental and emotional challenges during the deportation process. The Asylum Seeker Resource Centre (ASRC) offers free counselling services to refugees and asylum seekers in Australia. The Australian Red Cross also provides psychosocial support to refugees and asylum seekers who have experienced trauma.
Community Support
Several community organisations offer assistance and support to immigrants in need. The Refugee Council of Australia is one such organisation that advocates for the rights of refugees and asylum seekers. Moreover, the Multicultural Youth Advocacy Network (MYAN) provides support to young immigrants in Australia.
Financial Assistance
Several organisations provide financial assistance to immigrants facing deportation.
- The Asylum Seeker Resource Centre (ASRC) provides financial assistance to asylum seekers and refugees in financial hardship.
- The Red Cross also provides financial assistance to refugees and asylum seekers facing financial difficulties.
Reasons for Deportation
Visa Cancellation
Grounds for visa cancellation can include
- failing to comply with visa conditions
- failing to meet character requirements
- providing false information on your visa application
- criminal convictions
Breaching Visa Conditions
Examples of breaching visa conditions include
- working without permission
- overstaying a visa
- engaging in activities prohibited under the visa.
Criminal Convictions
Criminal conviction for crimes such as drug trafficking, sexual assault, and murder can get you deported from Australia.
The Process
If someone is in Australia illegally or there has been a breach in their visa conditions, authorities may place them in an immigration detention centre while the review of their case is pending. During this time, they can appeal their case or apply for other visas to enable them to remain in Australia.
If the decision is made to deport someone, they will be given notice of the decision and the reasons behind it. They can also appeal the decision to the Administrative Appeals Tribunal (AAT). If the AAT upholds the decision, the tribunal will give a specific date to the person by which they must leave the country.
Notice of Intention to Consider Cancellation
If the Department of Home Affairs (DHA) has concerns about a person’s visa status or character, they may issue a Notice of Intention to Consider Cancellation. This notice outlines the reasons for the potential visa cancellation and allows the person to respond.
Decision to Cancel Visa
After considering the person’s response, the DHA will decide whether to cancel the person’s visa. If they decide to cancel the visa, the Department will notify the person in writing. Where your application for a Bridging Visa ‘E’ is refused, you are barred from making another application for 30 days. If your application is granted, you will be permitted to remain in Australia for a specified period of time.
Detention and Removal
A person’s visa cancellation may result in detention and removal from Australia. This can be a traumatic experience, especially if the person has lived in Australia for many years and has established a life here.
Legal Rights
Individuals facing deportation in Australia have legal rights that must be respected. These include:
- Right to Legal Representation: Individuals can seek legal representation to help them understand their rights and make court appearances, if necessary.
- Right to Appeal: The cancellation of a person’s visa allows them to appeal the decision through the Administrative Appeals Tribunal (AAT). The AAT can review the decision and decide whether the cancellation was lawful and reasonable.
- Right to Fair Treatment: Individuals facing deportation must be treated fairly and with dignity. They should not be subject to mistreatment or discrimination based on their race, religion, or nationality.
Seek Legal Advice from Migration Lawyers
Deportation cases in Australia can be complex and challenging, especially for non-Australian citizens unfamiliar with the country’s legal system. In such cases, lawyers ensure that the entire process is fair, just, and transparent.
Seeking legal advice and understanding your options for appeal or other visas that may allow you to remain in Australia is essential. Migration lawyers will ensure that non-citizens receive fair and just treatment under the law.
Our team of lawyers at JB Solicitors can provide you with legal representation and support in challenging unjust decisions and promoting a greater understanding of the migration policies of Australia.
Contact us now.
