Non-citizens in Australia, can be deported if they are convicted of certain serious criminal offences. The Migration Act 1958 sets out the grounds for deportation, which include the following.
Serious Criminal Offences
Non-citizens who are sentenced to 12 months term of imprisonment or more in prison for a criminal offence are liable for deportation. This includes offences such as murder, sexual assault, drug trafficking, and fraud. However, this is not an automatic removal or deportation. The Department of Home Affairs is required to take a number of factors into consideration prior to making a deportation order or revocation of your current visa. These factors include the nature and circumstances of the offence, the magistrate or judge’s opinion of the offence, the type and duration of the penalty, any evidence or lack of rehabilitation, the possibility of reoffending, general deterrence, criminal history, public interest considerations, family circumstances, and Australia’s international legal obligations with respect to refugees.
Non-citizens who are a risk to national security can be deported. This includes individuals who have been involved in terrorism or espionage. Deportation of an Australian citizen on national security grounds would likely involve a careful assessment of the individual’s specific circumstances and the nature and severity of the threat they pose. The decision to deport a citizen would also be subject to judicial review to ensure that it complies with the legal requirements and principles of natural justice.
Non-citizens who fail the character test can be deported. This includes individuals who have been convicted of offences such as domestic violence, child abuse, or other serious crimes.
Non-citizens who have had their visa cancelled by the Minister for Home Affairs for any reason can be deported.
In most cases, the answer is no. Australian citizens have the right to enter and remain in Australia without restriction, except in very limited circumstances.
For example, if a person obtained citizenship fraudulently or by concealing material facts, their citizenship may be revoked, and they could be deported. Similarly, if a person is a dual citizen and is convicted of terrorism offences or other serious crimes, they may lose their Australian citizenship and be deported.
Yes, Permanent Residents in Australia can be deported for committing certain crimes. Under the Migration Act 1958, a Permanent Resident may be deported if they are convicted of a serious criminal offence, which carries a sentence of 12 months or more imprisonment, or if they fail the character test. The character test includes various factors such as whether the person has a substantial criminal record or whether they present a risk to the Australian community.
The decision to cancel a Permanent Resident’s visa and deport them is made by the Minister for Home Affairs or a delegate. In making such a decision, the Minister or delegate will take into account various factors, including the severity of the offence, the person’s personal circumstances, and the risk they pose to the Australian community.
However, the deportation of a Permanent Resident is a serious matter and can have significant consequences for the individual concerned, including separation from their family and friends, loss of employment, and a potentially lengthy ban from re-entering Australia. Accordingly, if you are a Permanent Resident facing criminal charges, it’s crucial to seek legal advice to understand your rights and options.
If a deportation order has been issued, you could be apprehended without a warrant, and if you are not the intended recipient of the order, you must inform the authorities within 48 hours. A court will then decide whether the order pertains to you. In the event you are serving a prison sentence, your deportation arrangements will be made before your release from custody. Usually you will be transported from the jail to the airport directly, departing Australia immediately. Otherwise, you will be held in immigration detention until it is feasible to transfer you to the airport. Furthermore, it is your responsibility to bear the expenses of your deportation.
If you are facing deportation from Australia, you may be able to appeal the decision of the Minister for Home Affairs or their delegate. However, the process and the likelihood of success will depend on your individual circumstances.
There are two main avenues for appealing a deportation decision. These are.
Administrative Appeals Tribunal (AAT) Review
If your visa has been cancelled and you are outside of Australia, you may be able to apply for an AAT review of the decision. However, the AAT can only review certain types of visa cancellations, and there are strict time limits for lodging an application. If you are in Australia and your visa has been cancelled, you may also be able to apply for an AAT review, but you will generally need to do so within 9 days of receiving the notice of cancellation.
Federal Court Appeal
If your visa has been cancelled and you have exhausted all other avenues of review, you may be able to appeal to the Federal Court of Australia. However, this can be a complex and expensive process, and you will generally need to show that the Minister or their delegate made an error of law in making the decision to cancel your visa.
It is important to seek legal advice if you are considering appealing a deportation decision. A criminal lawyer in campbelltown with expertise in criminal law can help you understand your rights and options, and can represent you in the appeals process.