Migration Act: Detention of Deportees and Removees

Please note that the information we provide in this article about ‘detention of deportees and removees’ is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

What are the rules on the detention of deportees and removees in Australia? 

The Migration Act provides for the automatic removal of non-citizens who are not legally in Australia. All non-citizens who have entered Australia or arrived with the intention of entering, whether for a short-term or long-term stay, are those who do not hold Australian citizenship. 

Removal and deportation are essentially the same; however, removal is used for unlawful non-citizens, who may be permanent residents whose visas have been revoked by the minister under section 501 (refusal or cancellation of visa on character grounds) of the Act on the grounds that they are of “bad character.” 

Deportation is only applicable to permanent residents who commit serious crimes within the first ten years of their entry. Under the Migration Act, deportation requires a formal order, whereas removal occurs automatically.

Now that you have a basic idea of the concept of removal and deportation, let us now discuss Sections 252F to 253 of the Migration Act which talks about the detention of deportees and removees.

Detention of Deportees and Removees: State or Territory Prisons and Remand Centres

Section 252F of the Migration Act talks about the detainees in the State or Territory prisons or remand centres. A person is considered as such if:

1. he or she is held in immigration detention in a prison or remand centre of a State or Territory; and
2. a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.

Under this section, the State or Territory law applies to the detainee as if it were a Commonwealth law, to the extent that it grants that power or influences the use of that power.

However, do note that the following provisions will not apply to a detainee to whom this section (252F) applies:

• Power to conduct a screening procedure (Section 252AA)
• Power to conduct a strip search (Section 252A).

SECT 252G

Powers Concerning Entry to a Detention Centre

What are the requirements for entry to a detention centre under this Act? Section 252G allows officers to request individuals entering a detention centre to undertake one or more of the following actions:

1. Screening. Walk through screening equipment or allow an officer to pass hand-held screening equipment over or around the person or around things in the person’s possession;
2. X-ray. Allow the person to pass their possessions through screening equipment or to submit them for X-ray examination.

Under this provision, if an authorised officer suspects on reasonable grounds that a person about to enter a detention centre has in his or her possession a thing that might:

• endanger the safety of the detainees, staff or other persons at the detention centre; or
• disrupt the order or security arrangements at the detention centre;

the authorised officer may request that the person one or more of the following:

1. allow the authorised officer to inspect the things in the person’s possession.
2. remove some or all of the person’s outer clothing such as a coat, jacket or similar item;
3. remove items from the pockets of the person’s clothing.
4. Open an item or its contents in the person’s possession for inspection by an authorised officer.
5. Leave an item or its contents in a specified place if an officer suspects it could conceal something that might:

• endanger the safety of the detainees, staff or other persons at the detention centre; or
• disrupt the order or security arrangements at the detention centre.

Purpose of requirement: To find out whether the person has the thing that the officer suspects. 

Other Rules Under Section 252G

Additionally, this clause stipulates that an individual must retrieve whatever they left behind—including any contents—when they leave the detention facility, provided they stored these items in a location designated by an authorised authority.

On the other hand, if Commonwealth legislation or the laws of the State or Territory where the detention facility is located prohibit the individual from possessing the item or any of its contents:

• the thing or the contents must not be returned to the person; and
• An authorised officer must quickly give the item or contents to a constable as defined in the Crimes Act 1914.

Important: Entry into a detention centre established under this Act may be denied to a person who does not comply with a request under this section.

Detention of Deportees and Removees: Rules as to the Deportee

Section 253 lays out the rules as to the detention of a deportee. To understand further about these rules, it is important to talk to a solicitor so they can fully explain to you the implications of these rules:

1. When a person is the subject of an order for their deportation, an officer has the right to detain without a warrant anyone they have a reasonable suspicion of being that person.

2. The detainee may be subject to immigration detention or detention as a deportee as directed by the Minister, Secretary, or Australian Border Force Commissioner.

• They detain the person pending deportation until they place them on board a vessel for deportation.
• The authorities may place the person onboard and transport them to any Australian port or place the vessel visits.
• on board the vessel until its departure from its last port or place of call in Australia.

3. When an officer detains someone, they have a duty to promptly explain the grounds for the detention and, upon request, provide the subject with details of the deportation order as soon as is reasonably possible.

Detention of Deportees and Removees: Claims Against a Detention Order

If a detainee denies being the deportation subject within 48 hours, two options are available:

1. ask the detainee, if they are an officer; or 
2. in any other situation, ask an officer to question the detainee.

To make a statutory declaration to that effect. If the person in custody makes such a declaration, the officer who requested it may:

1. Bring them before a prescribed authority within 48 hours of making the declaration, or.
2. After the specified time, if unable to bring them before the prescribed authority, do so at the earliest opportunity thereafter.

Here’s an easier visual as to the effect of bringing a person to the prescribed authority:

Situation	Effect
The person is brought before a prescribed authority (PA)	PA shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee. If PA is satisfied: he or she must declare in writing that such person is a deportee.
If not brought within a particular period	Release of the person
When PA makes a declaration	The detained person may be held in detention as a deportee but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly.

Note on Unconditional Release:  Notwithstanding anything else in this section, the Minister, Secretary, or Australian Border Force Commissioner may, at any time, order the unconditional release of a person detained under this section, or the release of such person subject to certain conditions.

Warrantless Detention 

This section covers situations where an officer can detain a person without a warrant. Thus, if the person is in any of the situations below, such officer may detain a person:

1. The authority releases the detainee unconditionally but imposes certain conditions.
2. has breached any of those conditions.

READ: Costs of Removal or Deportation of Non-Citizens

Migration Lawyers Can Assist You

Confused about deportation or removal proceedings? A migration lawyer from JB Solicitors can walk you through the entire legal process. That’s why you need to schedule your consultation as soon as possible! Getting the legal help, you need will help you ease the burden of this challenging situation.

Contact us today.