Deportation Proceedings In Australia

According to the Migration Act of 1958, unlawful non-citizens are subject to automatic removal or deportation proceedings. These non-citizens include "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." Even if the non-citizen has acquired permanent residency status, inclusion under deportation proceedings effectively cancels permanent residence, and then deportation applies.

There are many ways that unlawful non-citizens are subject to deportation or removal proceedings, such as the commission of a crime, overstaying the term of the visa or breach of the conditions attached to the visa issued.

While deportation and removal proceedings are one and the same action, deportation applies only to those that have acquired permanent residency in Australia and commits any serious crime within the first ten years of entry into the country. Removal on the other hand is used for unlawful non-citizens through the cancellation of the visa issued to the individual. Deportation requires a specific court order under the Migration Act while removal can be undertaken automatically after cancellation of the visa issued.

One of the effects of the removal or deportation proceedings would be the conveyance of the individual to a location outside the borders of Australia. Aside from this penalty, the individual is required to pay for the costs of the passage plus other charges appurtenant to the conveyance. Pending such action, the individual is held in custody pending such date of deportation. From there, the costs of such incarceration would be included in the fees and penalties applied to the order. These costs can be taken from seized items and assets of the deported individual after they have been sold at auction.

As previously stated, when a non-citizen, meaning visa holder or permanent resident has committed a crime within a given period or if the individual is convicted of a crime where the sentence imposed is at least one year in prison, then deportation proceedings apply. The more common practice would be to cancel the permanent residency, making the individual subject to removal proceedings for being an unlawful non-citizen. This is done during the term of the incarceration or immediately prior to release. The crimes committed subject to this order would be violent crimes, injury or corruption of minors, sex offenses against children, trafficking and distribution of drugs. If there is a previous conviction, the individual needs to prove that one possesses has good moral character.

Before such order of removal or deportation is done, the following factors are taken into consideration:

1.The Nature of the Offense;

2.The Circumstances of the Offense;

3.The View of the Offense Expressed by the Court Before which the Offender Appeared;

4.The Nature of the Penalty;

5.The Extent of the Rehabilitation of the Offender;

6.The Probability of Recidivism or Repetition of Offenses;

7.The Necessity of the Presence of the Individual to Prevent or Inhibit the Commission of Like Offenses by Related Individuals;

8.The Previous Criminal History of the Offender;

9.The Public Interest;

10.The Circumstances of the Family or Other Persons Having a Relationship with the Offender;

11.The Obligations of the Commonwealth under the Convention Relating to the Status of Refugees;