The Difference Between Deportation and Removal From Australia

Created: Oct 31, 2023 | Updated: Nov 15, 2023

Australia's immigration system, like most countries in the world, has intricacies that often confuse visa holders and the general public alike. This article explores the differences and similarities between deportation and removal.

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Australia has been a sought-after destination for both tourists and potential residents for a long time. As a result of this, it has developed a sophisticated immigration system to manage the influx of people from around the globe. Within this system, the terms and regulations might appear similar but can have vastly different implications. One of the most pivotal distinctions is between deportation' and 'removal.

Understanding this difference is mostly about recognizing the substantial repercussions each holds for you. Deportation, for instance, often carries weightier consequences and stems from more severe misconduct than removal. Misinterpreting these terms can lead to misunderstandings about your legal standing, the rights you possess, and the future ramifications for re-entry into Australia.

We believe that possessing the right knowledge will not only help you comply but will also empower you to exercise your rights effectively.

 

The Importance of Adhering to Visa Conditions

If you are granted a visa to enter Australia, you should know that the visa is not just a stamp on your passport; rather, it is a legally binding agreement between you and the Australian government. Here's why adhering to these conditions is important:
 

1. Upholding the Law: The conditions in your visa are a part of Australian law and ignoring or violating these terms is equivalent to breaking the law, which can lead to punitive measures.
    
2. Protecting One’s Status: A breach of visa conditions can result in the cancellation of the visa itself. This can lead to immediate removal or even deportation from Australia, depending on the severity of the breach.
    
3. Future Visa Applications: A record of non-compliance can lead to future applications being rejected, not just in Australia but potentially in other countries that share immigration information with Australia.
    
4. Financial Implications: This could be in the form of fines or, in the case of deportation, bearing the cost of the process.
    
5. Reputation & Opportunities: Employers and institutions might be wary of individuals who have breached visa conditions in the past, seeing them as potential risks.
    
6. Personal Well-being: The constant fear of potential legal actions or being removed from the country, which can overshadow the purpose of the visit, whether it's leisure, work, or study.

 

Definition of Deportation in Australia

In the context of Australian immigration law, deportation is a formal procedure imposed on non-citizens who have violated specific conditions of their stay or have engaged in certain unlawful activities. It's not just a return to one's home country; deportation carries with it a range of legal and personal implications. 

For instance, a non-citizen who is sentenced to a prison term in Australia for more than 12 months may be subject to deportation. Another potential ground for deportation is the breach of visa regulations that are considered severe, such as visa fraud or misrepresentation in visa applications.

The process of deportation is anchored in section 206 of the Migration Act of 1958 and is undertaken by the Department of Home Affairs. It involves a series of steps starting with the issuance of a 'Notice of Intention to Consider Deportation'. The individual concerned is then given 48 hours to provide reasons against their deportation, if they do not respond, or if they are unable to provide convincing reasons why they should not be deported, their deportation will be concluded.

 

Legal Grounds for Deportation

Consequently, there are specific legal grounds on which an individual can be deported. Understanding these grounds is essential, both for those living in Australia on visas and for those who want to move there. 

1. Criminal Convictions: Not all offences lead to deportation, but certain serious crimes like violent crimes, sexual offences, drug offences, financial crimes, and organized crime,  can make an individual vulnerable to deportation. 
    
2. Visa Violations: Working without a valid work permit, overstaying the visa's duration, or engaging in activities that are explicitly prohibited by the visa type. Additionally, hiding prior criminal records, falsifying documents, or providing false testimony is also a violation.
    
3. Threat to National Security: In instances where an individual is deemed a threat to Australia's national security they can be deported. This includes involvement in terrorist activities, and espionage.
    
4. Rejection of Refugee or Asylum Status: Individuals who arrive in Australia seeking refugee or asylum status and are rejected, especially after all avenues of appeal have been exhausted, may face deportation to their country of origin.

 

The Effects of Deportation on an Individual's Immigration Record

When an individual is deported from Australia, the most enduring consequence is the indelible mark left on their immigration record. This mark serves as a warning for future immigration or border control officers, both within Australia and internationally.

This negative mark can make re-entry into Australia incredibly challenging, if not impossible, for a prolonged period. Moreover, applying for visas or even transiting through other countries can become almost impossible, because many nations consider a deportation history as a red flag, indicative of potential non-compliance.

 

 

Definition of Removal in Australia

A "Removal" defines an administrative action taken against individuals who have overstayed their visa duration or have otherwise become unlawful non-citizens without a significant criminal record.

Unlike deportation, which is often triggered by a criminal conviction, removals specifically target people who are in Australia without a valid visa due to visa expiration, cancellation, or nullification. Usually, this is due to a simple oversight, a misunderstanding of visa terms, or unintentional delays in departures.

 

The Process of Removal in Australia

1. Identification of Unlawful Status: 
   - The first step involves identifying individuals who have overstayed their visa or violated its conditions.
    
2. Issuance of Notice:
   - The Department of Home Affairs then issues a 'Notice of Intention to Consider Removal' to them.
   
   - This notice allows the individual to present valid reasons against their impending removal, ensuring a fair opportunity to argue their case.
    
3. Response Timeframe:
   - After being notified, you have a chance to respond to the notice. It's crucial to act promptly (The duration to send a response is usually specified in the notice).
    
4. Removal Order: 
   - If the Department isn't satisfied with the provided reasons or receives no response, they will issue a 'Removal Order', to be executed by the police.
    
5. Detention Awaiting Removal:
   - Individuals awaiting removal might be placed in Immigration detention centres. The detention centres aim to ensure the individual's availability during the removal process.
    
6. Rights and Appeals:
   - Throughout the removal process, remember you have rights. You can seek legal counsel, apply for a Bridging visa ( to grant you lawful status again) and appeal to the Administrative Appeals Tribunal – Migration and Refugee Division against decisions.

 

Key Differences Between Deportation and Removal

Characteristics	Deportation	Removal
Basis for the action	Based on criminal convictions or significant breaches of visa conditions.	Primarily due to overstaying visa duration without any major criminal record.
Duration of Prohibition from Re-entry	Prohibition can be long-term, and in some cases, indefinite.	The period of the ban is stipulated on the removal notice.
Record Implications	Has profound implications. It not only impacts future immigration attempts to Australia but can also hinder movement to other countries.	Has a comparatively moderate impact and is specific to the reason for the removal – that is, overstaying.
Legal Proceedings	The process often involves complex legal proceedings, allowing individuals the possibility of appeals or seeking revisions.	Given its straightforward nature, the removal process is generally swift, with fewer avenues for recourse.
Impact on Family	Families can be deeply affected, especially if some members are Australian citizens or permanent residents. This can lead to divided families.	The impact, while still significant, is often for a shorter duration. Families can reunite more easily once the ban lifts.

 

Rights of the Individual Under Each Circumstance

Deportation Rights

• Right to Appeal: The basis of such appeals might vary, from contesting the facts leading to the deportation decision to raising human rights concerns.
   
• Right to Legal Representation: Individuals have the right to legal counsel throughout the deportation process.
   
• Access to Personal Documentation: This includes visa applications, personal identification, and any other documentation that might be relevant.
   
• Humanitarian Considerations: Those facing deportation can apply for intervention on humanitarian grounds, especially if they fear persecution or severe hardships in their home country.
   
• Family Rights: If the individual has family in Australia, the rights of family members, especially minors, need to be considered.

Removal Rights

• Notification: Individuals who are subjected to removal are typically notified about the decision and given a timeframe in which they must leave Australia.
   
• Right to Depart Voluntarily: Before any forced removal, individuals often have the right to leave Australia voluntarily. This may mitigate the negative implications on one's immigration record.
   
• Access to Personal Belongings: Prior to removal, individuals should be granted access to their personal belongings before departure.
   
• Reapplication Considerations: While those removed typically face a ban from re-entering Australia for a period, they have the right to be informed about the duration of this ban and any potential avenues for reapplication in the future.

 

Seeking Legal Counsel

1. Why Legal Counsel is Crucial:
   - You may need an immigration Lawyer to decode the complexities of Australian immigration.
    
2. Certified Translation Services:
   - For non-English speakers, understanding legal documents can be a challenge. Engaging a NAATI-certified translator is invaluable in such scenarios. Certified translation services in Australia can ensure that all documents are accurately translated, preserving their legal integrity.
    
3. Selecting the Right Attorney:
   - Select a lawyer with experience in immigration matters.
   - Seek referrals, read reviews, and research the attorney's track record.
   - Your attorney should be approachable and willing to explain processes clearly.
    
4. Cost Implications:
   - The cost of hiring an attorney might be a lot but in relation to the potential pitfalls of navigating the system without guidance, it is worth it. Most attorneys offer a consultation in the beginning, often free, to understand your case's specifics.
    
5. Post-Deportation or Removal Proceedings:
   Should an unfortunate event of deportation or removal occur, an attorney can provide guidance on:
   - Potential re-entry into Australia.
   - Managing assets left in the country.
   - Addressing any repercussions on one's immigration record.

 

 

Best Practices for Visa Holders

• Maintain copies of all visa-related documents, including entry and exit stamps.
   
• Promptly notify immigration authorities of any changes in circumstances, such as address or job.
   
• Always leave before the expiry date on your visa to prevent unintentional overstays.
   
• Avoid illegal activities; even minor offences can have visa implications.
   
• Ensure that any employment undertaken aligns with visa conditions. Stick to stipulated work hours or specific jobs.
   
• If planning to extend your stay, begin the renewal process well before the visa expiration date.
   
• If you are unsure about any conditions, consult with the Department of Home Affairs or an immigration lawyer.
   
• Keep abreast of any changes in immigration laws or policies that might affect your visa status.
   
• Ensure your passport is valid for the entire duration of your stay.
   
• Know your rights and responsibilities to avoid exploitation or misunderstandings.
   
• If English isn't your first language, consider using translation services in Australia, like a NAATI-certified translator, to understand all documents.
   
• Save contact information for your country's embassy or consulate in Australia.

 

FAQs
 

Can a Deported Person Return to Australia?

Yes, a deported person can potentially return to Australia, but only after a specified exclusion period and upon meeting strict re-entry conditions. They may also need to settle any outstanding debts related to their deportation. Each case is reviewed on its merits, and re-entry is not guaranteed.

 

What Happens to the Assets of Someone who is Deported or Removed?

When an individual is deported or removed from Australia, their assets are not automatically seized by the government. Instead, they retain ownership of their assets. However, they might need to make arrangements, such as appointing a power of attorney, to manage or liquidate assets on their behalf. If no arrangements are made, assets like bank accounts and properties may remain dormant or could potentially incur fees or charges.

 

Is Removal the Same as Deportation?

No, they differ based on reasons and implications.

 

Who Pays for Deportation Costs in Australia?

In Australia, the individual being deported is generally liable for the costs associated with their deportation. If they cannot afford to pay immediately, a debt to the Australian government may be raised, which they are obligated to repay, either through their assets, in the case of future re-entry into Australia or an agreement with the deportee’s country government.

 

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