Unlawful non-citizens are subject to automatic removal from Australia under the Migration Act 1958 (Cth) ("Migration Act"). All persons without Australian citizenship who have entered Australia, or arrived in Australia intending to enter, either for a temporary or permanent stay, are non-citizens. Where a non-citizen is a permanent resident the removal power does not apply unless their permanent residence is cancelled and they thereby become unlawful.

The majority of people removed are unlawful non-citizens. Non-citizens become "unlawful" for several reasons, most commonly by over-staying their temporary visas or by breaching the condition of their visa, which often prohibits work.

Some permanent residents can be deported if they commit a crime (see: "When is a person deported for committing a crime?", below).

Deportation and removal are essentially the same thing, although deportation can only be used on permanent residents who commit serious crimes within the first 10 years of their entry and removal is used for unlawful non-citizens, who can be permanent residents whom the Minister has stripped of their permanent status by cancelling their visas under section 501 of the Migration Act for being of "bad character". Deportation needs a specific order under the Migration Act, while removal takes place automatically.

Where the Commonwealth makes arrangements for a person removed or deported to be conveyed to a place outside Australia, that person is required to pay to the Commonwealth an amount equal to the passage money, plus other charges payable in respect of the conveyance (s.210 Migration Act).

Where a person who is being removed, or in respect of whom a deportation order has been made, is kept in custody in a state or territory pending deportation, that person is liable to pay to the Commonwealth an amount equal to the cost of maintenance during that period (s.209). Departmental officers are also able to seize valuables of people being removed or deported and apply them towards the costs of removal or deportation (s.224).

Permanent residents who are not Australian citizens may be deported if, within 10 years of entry, they are convicted in Australia of any offence for which they are sentenced to imprisonment for one year or longer (s.201 Migration Act). However, this section is now rarely used because the Minister and DIAC find it more convenient to use the very draconian powers under section 501 of the Act to "cancel" a person's permanent visa (no matter how long that person has lived in Australia), which thereupon makes the person an unlawful non-citizen who must be "removed".

The deportation order or cancellation decision is usually signed during a term of imprisonment or immediately upon the expiration of a term of imprisonment. In practice only those who have committed offences punishable by more than 12 months imprisonment are deported or removed. The Minister considers the most serious offences to include crimes of violence, offences involving injury to or corruption of young people, sex offences against children, and trafficking in or distribution of drugs. If a person has been sentenced to 12 months imprisonment or more, section 501 deems that person to be of bad character, and the onus is then shifted to the applicant to show otherwise (see s.501).

Even conduct that does not amount to a criminal offence can be used by the Minister to cancel a permanent visa under section 501, and this very draconian "character" power has been used increasingly by Ministers over the past 10 years in situations where the Minister or their delegate believes the "public interest" is served. Even more ominously, Ministers who "personally" use the cancellation power under section 501, rather than have their "delegate" make the decision, are only answerable to Parliament, because the personal use of the power strips the person of review rights before the AAT (s.500(1)(b)).

The following grounds in the Migration Act have been used only rarely to deport people:

A person will usually be interviewed before a deportation order is signed or a removal takes place. The interviewing officer should be informed as accurately as possible of dates of any entry or re-entry into Australia, and particularly of the circumstances of family or other relationships in Australia, including any de facto spouse. The interview may occur while a person is serving a term of imprisonment.

An officer must arrest a person whom they know, or reasonably suspect, to be an unlawful non-citizen (s.189). A permanent resident who has committed crimes and is the subject of a deportation order may be arrested without warrant. What happens then depends upon whether the person is an unlawful non-citizen (subject to removal) or a permanent resident (subject to deportation).

Unlawful non-citizens detained under section 189: There is no obligation to bring a person detained as an unlawful non-citizen before a court. Such a person must be kept in immigration detention until they are either removed from Australia or granted a visa.

Once a person is detained under this section, an officer must ensure that the person is made aware of the fact that they may apply for a visa within two working days of that notice (s.195(1)(a)). If the detainee informs an officer in writing within those two working days of their intention to apply, a further five working days are allowed (s.195(1)(b)). A person applying for a visa outside these time limits is severely restricted in the type of visa which can be applied for (s.195(2)). In any event, if no visa is granted, the person must be removed from Australia.

Permanent residents subject to deportation or cancellation/removal : If a permanent resident has a deportation order signed against them, that person becomes a "deportee" and, if arrested, must be told of the reasons for detention and, if requested, the detaining officer must give the person particulars of the deportation order (s.253(3)).

If the person claims, within 48 hours, that they are not the person in respect of whom the deportation order is in force, the person must be brought before a judge, magistrate or other prescribed authority within 48 hours or as soon as practicable thereafter (s.253(4)). If the authority is satisfied that there are reasonable grounds for supposing the person to be a deportee, the person may be held in detention pending deportation.

However, "deportation" under section 201 is rarely used these days. Rather, the "cancellation" powers under section 501 for bad character are used, effectively side-stepping the oversight of the courts, because a "removee" is merely an unlawful non-citizen whom the Migration Act says "must" be removed. The relatively recent detention and removal of several Australian citizens (e.g. see http://en.wikipedia.org/wiki/Cornelia_Rau) occurred without any court oversight because officers suspected them to be unlawful non-citizens.

A person who believes that they may be an unlawful non-citizen or otherwise subject to deportation should obtain legal advice before attending an interview with an officer of DIAC.

Where a person is detained under the Migration Act and is in the "migration zone" (namely, Australia), the person responsible for such detention must afford all reasonable facilities for obtaining legal advice or taking legal proceedings (s.256). However, if a person has been refused immigration clearance at a port or airport, and has been detained, there is no obligation to allow facilities for legal advice or the making of a visa application before removal (s.198).

An unlawful non-citizen who has been detained may apply for a bridging visa which, if granted, has the effect of releasing them from detention (usually pending consideration of the grant of a substantive visa) (s.196(1)(c) Migration Act). Where an eligible non-citizen in immigration detention applies for a Bridging visa (Class E), and the Minister does not make a decision within two working days to either grant or refuse it, the non-citizen is taken to have been granted a Bridging visa at the end of that period and must be released from detention (s.75(1)).

It is also possible to apply for a Bridging visa on the basis that the non-citizen needs to be out of detention (e.g. to sell a car or furniture or a business) prior to leaving the country and no substantive visa is involved. A person refused a Bridging visa has a right to seek review of the decision directly to the Migration Review Tribunal (MRT), and the MRT must decide the application within seven working days, or longer, by agreement with the applicant (see: "Time limits for lodging review", below).

Bridging visas are different from Substantive visas; the former keeps a non-citizen "lawful" until the latter is granted. Bridging visas cannot be applied for in "immigration clearance" (i.e. at the airport or port of arrival).

Where a permanent resident is serving a term of imprisonment the question of deportation or more likely, cancellation and removal (under section 501 of the Migration Act) is usually considered shortly before release. Should deportation not be arranged to coincide with the date of release, a person, on being released, may be held in custody.

If deportation under section 201 is being considered and the period of custody appears likely to be protracted, a person may be released on condition that they report regularly to DIAC and notify any change of address (s.253(9)). However, if section 501 "character" cancellation proceeds, the person must be detained and there is no right of release (s.501F).

Whenever anyone alleges that they would be likely to suffer persecution if deported to their homeland, additional factors arise for consideration. A refugee application can be lodged, and the case is then referred to the Refugee section of DIAC and, on appeal, to the Refugee Review Tribunal (RRT) to undertake investigations and decide whether the person should be recognised as a refugee and whether they are entitled to the protection of the Convention Relating to the Status of Refugees.

Note, however, that certain Articles of the Convention state that if the applicant commits a serious non-political crime in the receiving country, that country does not have to offer protection to them.

Schedules 4 and 5 of the Migration Regulations set out the various periods for which people deported or removed from Australia are banned from returning. These periods range from permanent bans (for permanent residents convicted of crimes and either deported under section 201 or removed after cancellation of their permanent residence under section 501) to 12 months (for tourists who allowed their visas to expire, but left Australia other than as a result of action by officers of DIAC).

Non-permanent bans can be lifted if the Minister is satisfied that in the particular case there are "compassionate or compelling" circumstances justifying their waiver (see: Sch.5).

Extradition refers to the formal surrender by one nation or state to another of a person accused or convicted of an offence outside its own territory and within the territorial jurisdiction of the other, which is competent to try and punish the person and demands the surrender (see O'Connell, D., International Law in Australia, 2nd edn., edited by K. W. Ryan, Law Book Co., 1984, p.720).

In Australia, extradition is most commonly applied between states. Extradition to and from Australia is less frequent.