Removal from Australia
Overview
Section 198 of the Migration Act 1958 (Cth) imposes a mandatory duty on officers to remove unlawful non-citizens from Australia as soon as reasonably practicable once the person's immigration matter has been finally determined. Removal under s 198 is to the person's country of nationality (or former habitual residence). Deportation under s 200 is a separate power, applied to lawful non-citizens who have committed serious crimes. The non-refoulement obligation under international law does not limit the domestic removal obligation under s 198 by virtue of s 197C.
Removal from Australia is the compulsory departure of an unlawful non-citizen arranged by the Department of Home Affairs. It is distinct from voluntary departure, where a person departs independently. Removal is arranged by the Department using commercial flights or charter aircraft, sometimes under escort by ABF officers.
Legal basis
- Section 198 — the mandatory removal obligation: an officer must remove an unlawful non-citizen as soon as reasonably practicable after the person has been refused a visa; is taken to be an unlawful non-citizen; makes a request to be removed; has been in detention for 4 years; or has had all visa options finally exhausted
- Section 197C — the removal obligation is not limited by Australia's non-refoulement obligations under international law for the purposes of Part 9
- Section 197AA — the Minister may, in limited circumstances, allow removal to a country other than the person's country of nationality
- Section 200 — deportation of a non-citizen who has been convicted of an offence and sentenced to imprisonment for 12 months or more
- Section 201 — deportation on additional grounds (time in Australia under 10 years and sentence of imprisonment)
How it works
Removal under s 198
Removal is triggered after an unlawful non-citizen's immigration matter has been finally determined — that is, all visa applications have been decided and all review rights exhausted. The removal obligation is mandatory: the officer does not have a discretion about whether to remove; the discretion relates only to when and how removal is effected.
Removal is generally to the person's country of nationality. If the person has no country of nationality (is stateless), removal is to the country of their last place of habitual residence. Practical impediments to removal — such as refusal by the destination country to issue travel documents — can result in indefinite detention (subject to the constitutional limits identified in NZYQ).
Non-refoulement and s 197C
Section 197C provides that the s 198 removal obligation is not limited by non-refoulement obligations for the purposes of the removal power itself. This means that the removal officer cannot be successfully sued for breach of the Migration Act on the basis that the removal would breach a non-refoulement obligation. However, Australia's international law obligations persist — and the proper mechanism for raising non-refoulement concerns is through the protection visa system, not as a defence to the removal obligation.
Removal direction to an alternative country
Under s 197AA, the Minister may allow (but not direct) removal to a country other than the person's country of nationality in exceptional circumstances — for example, where the person faces persecution in their home country but has a refugee status determination pending in a third country.
Deportation under s 200
Deportation is different from removal. A non-citizen who has lived in Australia for less than 10 years and is convicted of a crime for which they are sentenced to imprisonment for 12 months or more may be deported under s 200. The deportation order is made by the Minister. Unlike removal (which is an administrative process), deportation under s 200 requires a Ministerial decision.
Persons who cannot be removed
In some circumstances, removal is not immediately practicable — for example, where the destination country refuses to accept the person or will not issue travel documents. In such cases, the detention of the person may become constitutionally impermissible under NZYQ once there is no real prospect of removal in the reasonably foreseeable future.