Criminal Offences and Deportation – Non-citizens
Section 189 of the Migration Act states that anyone who enters Australia without a valid visa is considered to be an unlawful non-citizen. It also states that the unlawful non-citizen is subjected to mandatory arrest and eventual removal unless a valid visa is granted. The Minister has broad discretionary powers to cancel any visas personally.
There are few main reasons for the removal of a non-citizen. Most common reasons are (a) breaching the visa conditions stipulated in the visa grant letter, (b) overstaying the temporary visa, (c) Committing serious offences. Permanent residents (who are also non-citizens) can be deported for the reason of committing a serious crime.
The consequences of removal and deportation are the same. The terminology however differs in two respective situations. If a permanent resident commits a serious crime within the first ten years of their entry, that resident may be deported. Section 501 of the Migration Act allows the Minister to strip off their permanent status for being of bad character. The term removal is used in the case of unlawful non-residents.
Enters by Deception
If a person enters Australia with a passport, visa or other travel documents that was not issued to them, they enter by deception. (S.109 of the Migration Act). If a person enters by deception the visa will be cancelled when the irregularity is detected.
Incoming Passenger Card
Each person entering Australia must complete an incoming passenger card. If a person enters Australia without disclosing certain information they may have their visa cancelled and be deported.
Temporary visa holders are granted with a visa valid for a certain period of time. If a visa gets cancelled or expires, that person becomes an unlawful non-citizen. Unless a further visa is granted, that person must be removed from Australia.
Committing a Serious Crime
In terms of the section 201 of the Migration Act, if a permanent resident commits a serious crime (substantial criminal record) within the first ten years of their entry to Australia the person can be subjected to deportation. However, in the contemporary settings, this section is very rarely used. Rather, section 501 which allows the Minister to cancel the permanent visa despite the length of their residency in Australia is more commonly used. Section 501(7) defines a substantial criminal record to include;
- sentenced to death;
- sentenced to imprisonment for life;
- sentenced to a term of imprisonment of 12 months or more;
- sentenced to two or more terms of imprisonment (on one or more occasions) where the total of those terms is two years or more; or
- acquitted of an offence on the grounds of unsoundness of mind or insanity as a result of which the person has been detained in a facility or institution.
Costs related to removal or deportation
In terms of the section 210 of the Migration Act, when the Australian government makes arrangements for any unlawful non-citizen to be removed or deported, that person has to pay the cost of passage money and any other charges. Also, in terms of the section 209, if the person is kept in custody pending deportation, all maintenance costs must be paid by the person. Section 224 authorises the Department to seize the valuables of the person being removed or deported to cover the costs of removal or deportation.
Page last updated 20/09/2021