Section 203 — Deportation of non-citizens who are spouses or dependants
Text of provision
offences
(1) Where:
(a) a person who is a non-citizen has, either before or after the commencement of this subsection, been convicted in Australia of an offence;
(b) at the time of the commission of the offence the person was not an Australian citizen; and
(c) the offence is:
(ia) an offence against Division 80 or 82 of the Criminal Code; or
(ib) an offence against section 83.1 (advocating mutiny) or 83.2 (assisting prisoners of war to escape) of the Criminal Code; or
(ii) an offence against section 6 of the Crimes Act 1914 that relates to an offence mentioned in subparagraph (ia) or
(ib) of this paragraph; or
(iia) an offence against section 11.1 or 11.5 of the Criminal Code that relates to an offence mentioned in subparagraph (ia) or (ib) of this paragraph; or
(iii) an offence against a law of a State or of any internal or external Territory that is a prescribed offence for the purposes of this subparagraph; then, subject to this section, section 200 applies to the non-citizen.
(2) Section 200 does not apply to a non-citizen because of this section unless the Minister has first served on the non-citizen a notice informing the non-citizen that he or she proposes to order the deportation of the non-citizen, on the ground specified in the notice, unless the non-citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister’s notice, that his or her case be considered by a Commissioner appointed for the purposes of this section.
(3) If a non-citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non-citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice.
(4) A Commissioner for the purposes of this section shall be appointed by the Governor-General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years’ standing. Migration Act 1958 379 Part 2 Arrival, presence and departure of persons Division 9 Deportation
(5) The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established.
(6) The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
(7) Where a notice has been served on a non-citizen under subsection (2), section 200 does not apply to the non-citizen because of this section unless:
(a) the non-citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner;
(b) the non-citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or
(c) a Commissioner reports under this section in relation to the non-citizen that he or she considers that the ground specified in the notice has been established.
Plain English
Section 203 provides that where a non-citizen is ordered to be deported under s 200, the Minister may also order the deportation of the non-citizen's spouse and/or dependent children if they are also non-citizens and the Minister considers it appropriate. This provision allows for family unity in the deportation context, but may also be used to remove the family unit together.
Practical effect
Family deportation orders under s 203 raise significant human rights and family unity considerations. The power is discretionary, and decision-makers must have regard to the best interests of any children involved. In practice, the power is rarely exercised independently of the primary deportee's circumstances. Practitioners advising the family members of persons facing deportation should ensure that each family member's position is assessed separately and that submissions address the best interests of any children.