Transporting Removees and Deportees

This article will discuss the rules regarding transporting removees and deportees from Australia provided under sections 217 to 221 of the Migration Act 1958.

Every year, thousands of non-citizens face removal from Australia. Some have committed crimes, while others have simply fallen out of favour with the government. But for all of them, the process of removal can be traumatic and dehumanising.

Some non-citizens face detention in immigration detention centres, where authorities can hold them for months or even years. Authorities release others into the community, but they are subject to strict conditions, such as curfews and travel restrictions.

Section 217 and 218: Vessels Required to Convey Certain Removees

Section 217 and 218 provides for two rules regarding transporting removees and deportees:

1. In the removal of a removee from Australia, the Secretary or Australian Border Force Commissioner may give the controller of the vessel on which the person travelled to and entered Australia written notice requiring the controller to transport the person from Australia.
2. The controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows. If the controller does not comply, a penalty of 100 penalty units will apply. Furthermore, this offence is a strict liability offence.

What Is a Strict Liability Offence?

A strict liability offence is a criminal offence where the prosecution does not need to prove that the defendant intended to commit the offence. In other words, the defendant may be guilty of the offence even if they did not know that they were breaking the law.

In transporting removees and deportees, if a controller cannot comply with the notice within the required time, the defendant bears the burden of proof in showing that the law was complied with because this is a strict liability offence.

Section 219: Exemption From Complying

This section states that it is a defence to a prosecution for an offence against section 217 or 218 of failing to comply with a notice for transporting removees and deportees if the defendant proves:

• that the defendant was prevented from complying with the notice transporting removees and deportees because of stress of weather or other reasonable cause; or
• the defendant gave reasonable notice to the Secretary or Australian Border Force Commissioner of the person’s willingness to receive the non-citizen on board a specified vessel at a specified port on a specified day within 72 hours of the giving of the notice for removal or deportation, but the non-citizen was not made available at that port on that date for boarding the vessel.

Section 220: Waiver of Requirement

Section 220 imposes a duty on the part of the Minister to give the controller written notice revoking the notice under that section:

• if a notice has been given under section 218 requiring the transport of an unlawful non-citizen to a country; and
• if the government of that country notifies the Minister that the non-citizen would not be permitted to enter that country.

However, the revocation of a notice does not prevent another notice for transporting removees and deportees under section 218 or affect any liability for costs.

Section 221: Cost of Removal Under Notice

Section 221 provides for the instances when the Commonwealth may be liable for the costs of transporting removees and deportees. However, the Commonwealth is not liable if:

• the controller of a vessel receives a notice under section 218 to transport a non-citizen; and
• the controller was a carrier of the non-citizen; and
• sections 213(1)(a) and (b) apply to the non-citizen.

What Do Sections 213(1)(a) and (b) say?

Carriers are the controllers of a vessel in which a non-citizen last came to Australia. If these instances happen, the carrier is liable for the costs of removal and deportation of non-citizens from Australia:

• If a non-citizen who enters Australia must comply with section 166 (immigration clearance) and one does not comply.
• If a non-citizen who enters Australia complies with section 166 but faces detention under section 189 as an unlawful non-citizen.

To know more about the detention of unlawful non-citizens (sec. 189), here’s an article that might help.

• The Commonwealth is liable and sections 210 to 216 apply to the transport and costs if:
  • the controller of a vessel receives a notice of transporting removees and deportees under section 218 to transport a non-citizen; and
  • subsection (1) does not apply.

We discuss sections 210 to 216 in this article. Read on if you want to know more.

5 Reasons for Deportation or Removal From Australia

Non-citizens can become “illegal” for a number of reasons, most commonly due to overstaying their temporary visas or by violating a visa condition such as one that forbids employment.

1. Invalid visas. Unlawful non-citizens who have entered or remained in Australia without a valid visa may be subject to deportation or removal.
2. Breaching visa conditions. When a person breaches their visa conditions in Australia, it can lead to visa cancellation and potentially deportation. Some of the types of breached visa conditions include working without permit, overstaying, and failing the character test.
3. Criminal conviction. Non-citizens, including permanent residents, can be deported if they are convicted of certain serious criminal offences, such as drug trafficking, sexual assault, or murder.

Discuss Your Case With a Migration Attorney

If you or someone you know is facing deportation or removal from Australia, it is important to hire a migration attorney as soon as possible. JB Solicitors’ migration attorneys can help you understand your rights and options, and we can represent you in any legal proceedings.

There are a number of reasons why it is important to hire a migration attorney if you are facing deportation or removal from Australia. A migration attorney can:

• Help you understand the complex laws and regulations that apply to deportation and removal. 
• Help you identify any legal grounds that you may have to remain in Australia. 
• Represent you in any legal proceedings, such as an appeal of a deportation order.

Transporting removees and deportees from Australia can be a complex and challenging process. A migration attorney can help you ensure that we protect your rights and that you receive fair treatment throughout the process.

Talk to us and we’ll see what your options are.