Removal

Removal under the Migration Act is the mandatory return of an unlawful non-citizen from Australia. Unlike deportation (which applies to certain lawful non-citizens, typically on character grounds), removal applies as of right to any unlawful non-citizen in immigration detention.

Section 198(1) provides that an officer must remove an unlawful non-citizen from Australia as soon as reasonably practicable if: (a) the person is in immigration detention; (b) the person has not made a valid visa application; or (c) a visa application has been finally determined and refused.

The duty to remove is subject to certain exceptions and procedural requirements:

• Protection claims — where a person has made claims for protection, removal may not occur until those claims have been determined (including any review)
• Court orders — an injunction from the Federal Court or High Court may restrain removal pending judicial review
• Ministerial intervention — the Minister has personal powers under ss 417 and 501J to substitute a more favourable decision, which may affect removal

Removal is distinct from deportation. Deportation under s 200 of the Act applies to certain lawful non-citizens — in particular, non-citizens convicted of crimes and sentenced to imprisonment — and requires a specific ministerial decision. Removal under s 198 is an officer-level administrative act that does not require a ministerial decision once the preconditions are met.

A person who has been removed from Australia may subsequently apply for visas to return, subject to any bars or exclusion periods imposed as a result of the removal or the circumstances surrounding it. Character provisions under s 501 may apply if the person was removed in circumstances involving criminal conduct.

The constitutional constraints on indefinite immigration detention established in NZYQ v Minister for Immigration (2023) 97 ALJR 1007 have direct implications for the removal regime — where removal is not reasonably practicable in the foreseeable future, the detention that precedes it may be constitutionally invalid.