Any non-citizen present in Australia without a valid visa is considered to be unlawful and liable to be detained and removed to their country of Citizenship or habitual residence.
This is the case whether a person has entered Australia without a visa, overstayed their visa or had their visa cancelled. However, how the person is dealt with by the Department (including whether the Department will place them in immigration detention) will depend on the circumstances of their case and whether their continued presence in the community is considered to threaten Australians or Australian society.
Deportation, on the other hand, requires a specific order issued under s206 of the Migration Act 1958 and is only used in relation to permanent Australian residents.
There is a wide range of reasons why the Minister may cancel a person’s visa. However, the most common is that they are considered to be of bad character. A person will fail the character test if, for example, they have committed an offence resulting in their spending more than 12 months in jail.
Typically, a person who has their visa cancelled while in prison under these circumstances will be taken directly to a detention centre pending their departure from Australia.
If you are subject to a deportation order, you may be arrested immediately and without a warrant. An initial period of 48 hours applies, during which you have the opportunity to demonstrate that a mistake has been made and the order applies to another person.
Once arrested, you will be taken directly to immigration detention pending your formal deportation from Australia. If you are already in prison, you will be released into the hands of personnel from the Department of Immigrationa nd Border Protection for this purpose.
By definition, removal from Australia is not voluntary and should be avoided at all costs. If it is possible to obtain a temporary visa pending departure from Australia, this will always be preferable to a forcible removal.
Nonetheless, if you are removed, the process is the same as for a deportation – you will be detained and kept in an immigration detention facility until such time as you are placed on an aircraft departing Australia.
In both cases, the person removed or deported will be liable for payment of the expenses incurred by the Government. These costs can be significant.
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