Step-by-Step Guide to the Deportation Process Explained

In deportation, there is a need to understand your rights. In Australia, deportation is a legal process that is regulated by the Migration Act 1958 (Cth). It is distinct from removal, which is used in the case of unlawful non-citizens who have overstayed or had their visas revoked.

Generally, the deportation is used on permanent residents or long-term visa holders who fail to meet the character test, those who have indulged in a serious offence, or who are deemed a threat to security. Such a case may necessitate the need to seek the services of experienced migration lawyers Perth WA, who may defend your rights.

Legal Basis of Deportation

Division 9 of Part 2 of the Migration Act 1958 presents the framework of deportation. In section 200-206, the Minister is granted powers to deport non-citizens based on certain factors. For example:

• Section 200: The Minister has the authority to issue a deportation order to non-citizens who meet certain criteria.
• Section 201: The non-citizens who have not been in Australia for over 10 years and are convicted of committing a grave offence can be deported.
• Section 501: It is associated with the character test, as per which visas may be denied based on the assumption that an individual fails to fulfil the moral, criminal, or security criteria.

Process of Deportation

1. Determination of Liability

The Department of Home Affairs determines whether a non-citizen is subject to deportation provisions, which is often as a result of criminal convictions or character grounds.

2. Notice of Intention

The person is given a notice explaining why deportation is being contemplated. This is a chance to counter with arguments or evidence against the causes of deportation.

3. Ministerial Decision

The Minister or the delegate has to decide that there are grounds to issue a deportation order. Such considerations are quite subjective.

4. Appeals and Review Rights

The Administrative Review Tribunal (previously AAT) can review the decision in most instances. The Tribunal may review the facts and reverse the deportation order. Nonetheless, the Minister can make a person an excluded individual, and this excludes the right to appeal against deportation.

5. Detention Before Deportation

Immigration detention can be used to detain non-citizens who are subject to deportation pending the resolution of their case.

6. Deportation Order Implementation

Upon completion of the legal deportation process, the person is deported out of Australia, in most cases immediately after leaving prison, should there be any criminal convictions.

Rights and Protections

Even in the context of myths about deportation, there are rights. These are as follows:

• Procedural Justice: Right to be informed of the grounds for deportation and to be given an opportunity to reply prior to a decision.
• Review on Merits: Review tribunals with access unless barred by special provisions of the law.
• Judicial Review: When the detention vs deportation infringes the protection of constitutional or human rights, the courts may act.
• Family and Community Relationships: The authorities have to consider hardship, family association, and the best interests of children.

Recent Legal Developments

In 2023, the High Court case NZYQ vs Minister for Immigration held that immigration detention indefinitely is illegal if there is no genuine possibility of removal. This ruling severely affected the management of detention during deportation cases.

Also, reforms like the Migration Amendment (Removal and Other Measures) Bill 2024 extended ministerial powers of enforcement removal, impacting the manner in which removal and associated processes are implemented.

Statistics Regarding Deportation

• Every year, dozens of non-citizens are deported under Section 501 for character issues.
• During 2023–24, more than 600 people were removed for not passing the character test.
• Deportation generally comes into play where non-citizens get prison sentences of 12 months or more.
• The “ten-year rule” saves some long-term residents from deportation, but those in Australia for less than ten years are less protected.

Practical Steps if Facing Deportation

In case of being threatened with deportation:

• Seek Immediate Legal Advice: There are deadlines regarding appeals and responses.
• Supportive Evidence: Good community service, rehabilitation or family distress: To support the removal.
• Know Your Review Options: To secure your rights, an appeal must be prompt.

Conclusion

The deportation process in Australia is complicated and has stringent regulations that are regulated by the Migration Act of 1958. Although the Minister is granted extensive powers, the citizens do not remain deprived of such relevant rights, such as procedural fairness and the right to a review. By acting in time, knowing the procedures and seeking professional help, individuals can ensure their case is laid before the authorities in the best possible manner.