Breach of Immigration Laws (HSC SSCE Legal Studies): Revision Notes
Breach of Immigration Laws
When individuals breach Australian immigration laws, there are serious legal consequences. These consequences are designed to protect Australia's borders and ensure compliance with migration regulations. This note examines the three main legal responses to immigration law breaches: deportation and removal, extradition, and detention.
Deportation and removal
What is deportation?
Deportation is the forcible removal of a permanent resident from Australia. This is a serious measure that can only be taken against individuals who meet specific legal criteria under Australian law.
Legal framework
The Migration Act 1958 (Cth) provides the legal basis for deportation. Under the Australian Constitution, deportation can only occur if the person fits the definitions of either an 'immigrant' or an 'alien'. This constitutional requirement ensures that deportation powers are not used arbitrarily.
Section 200 of the Migration Act 1958 (Cth) grants the Department of Immigration and Border Protection (DIBP) the authority to deport migrants in specific circumstances. However, the power is exercised only in extreme situations, reflecting the seriousness of removing someone from their place of residence.
Who can be deported?
Permanent residents may face deportation in three main circumstances:
- Criminal convictions: When a migrant is convicted of a criminal offence and sentenced to more than one year imprisonment
- Multiple convictions: When a person has accumulated several criminal convictions over a period of time
- Security threats: When an individual is considered a threat to Australia's national security
Australian citizens cannot be deported, regardless of their criminal history or other circumstances. This protection only applies once citizenship has been granted. Only permanent residents face deportation risk.
The deportation process
Deportation cannot occur without proper legal process. The Minister for Immigration must personally make a deportation order before any removal can take place. This ministerial oversight provides an important safeguard in the deportation process.
Legislative changes in 2014 significantly expanded the Minister's powers to cancel visas. Between November 2014 and February 2015, more than 200 permanent residents had their visas cancelled and received notice requiring them to return to their country of birth. This demonstrates how changes to immigration law can have immediate and widespread effects.
Individuals facing deportation have the right to appeal. They can challenge the deportation decision at the Administrative Appeals Tribunal, providing an important check on executive power.
Removal from Australia
Removal differs from deportation in that it applies to individuals who were never granted legal permission to stay in Australia. Under the Migration Act 1958 (Cth), anyone without legal permission to remain must be removed as soon as practicably possible. This applies particularly to asylum seekers whose refugee claims have been unsuccessful.
Consequences of removal
The consequences of removal extend beyond simply leaving Australia:
Financial costs: The removed person must pay for their own removal costs or owe this amount to the Australian Government. This can create significant financial hardship.
Re-entry restrictions: A removed person faces a ban on re-entering Australia for up to three years. This restriction can have serious implications for family relationships and employment opportunities.
Lengthy process: Removal cannot occur until all visa applications have been fully determined. This process can take many years, during which applicants may form relationships and have children in Australia. When removal finally occurs, it can cause severe emotional and financial impacts for families.
Acceptance uncertainty: Removal from Australia does not guarantee acceptance by other countries, potentially leaving individuals in legal limbo.
Bridging visas are available to unlawful non-citizens to address the uncertainty faced by people without valid visas. These visas allow applicants to remain legally in Australia while their applications are being assessed, providing temporary legal status during the determination process.
Extradition
What is extradition?
Extradition occurs when a person currently residing in one country who is accused of committing a crime in another country is handed over to that other country for trial or punishment. This process enables international cooperation in law enforcement while protecting individual rights.
Legal framework
The Extradition Act 1988 (Cth) governs all extradition processes in Australia. This legislation applies to everyone living in Australia, regardless of their citizenship or visa status.
Requirements for extradition
Extradition will only occur when specific conditions are met:
Dual criminality: The alleged offence must carry a punishment of at least one year imprisonment in both Australia and the country where the crime was committed. This ensures that extradition only occurs for serious offences recognized as crimes in both jurisdictions.
Government detention: The Australian Government must detain the person facing extradition and formally hand them over to officials from the requesting country. These officials then transport the person to face trial and potential punishment.
Authority to order extradition
Only the Federal Attorney-General has the power to order an extradition from Australia. This high-level oversight ensures that extradition decisions are made with appropriate care and consideration.
Restrictions on extradition
The Attorney-General will refuse extradition in certain circumstances:
Mandatory Refusal Grounds:
- Risk of torture: If there are reasonable grounds to believe the accused will be tortured, extradition will not proceed
- Death penalty: If the person may face the death sentence, extradition will be refused
- Political persecution: Extradition is unlikely when a person is seeking refugee status in Australia due to political persecution in their home country
These restrictions reflect Australia's commitment to human rights and the rule of law, ensuring that extradition does not facilitate human rights abuses.
Detention
Legal basis for detention
The Migration Act 1958 (Cth) authorizes the immediate detention of any person in Australia without a valid passport. This power enables authorities to maintain control over who enters and remains in the country.
Who can be detained?
Detention applies to several categories of people:
- Unauthorised arrivals: People who arrive in Australia without proper documentation
- Visa over-stayers: Individuals who remain beyond the expiry date of their temporary visa
- Visa breach: Those who violate their visa conditions, such as working when their visa prohibits employment
Over-stayer is the specific term for a person who comes to Australia on a temporary visa but continues to stay after their visa expires.
Historical detention policy (1992-2008)
Between 1992 and 2008, Australia operated a mandatory detention policy for asylum seekers arriving without a visa. This policy applied to both adults and children. Detention typically ended only when individuals were either:
- Recognized as refugees and granted a protection visa, or
- Deported from Australia
The government introduced this policy for three main reasons:
Interview accessibility: Keeping applicants in detention made it easier to question them about their asylum claims
Prevention of absconding: Detained applicants could not disappear into the community during the application process
Facilitation of removal: Removing unsuccessful applicants from detention centres was simpler than locating them in the community
During the period 2000-2008, most detainees came from Afghanistan, Iraq, Iran, China, Indonesia, Sri Lanka, Palestine, Korea, Vietnam, and Bangladesh.
Current detention policy
The current government maintains detention centres as what it describes as an 'essential component of strong border control'. However, the policy has shifted away from automatic detention of all asylum seekers without visas.
Detention centres are now primarily used for:
- Unlawful non-citizens considered a threat to the community
- Those likely to violate visa conditions
- Individuals requiring health, identity, or security checks
Offshore processing
Both Labor and Liberal governments have implemented the 'Pacific Solution' involving offshore processing of unauthorised migrants at detention centres in Nauru and Papua New Guinea. This controversial policy has generated significant public debate, particularly following riots at the Nauru detention centre.
Types of detention facilities
Australia operates several categories of detention facilities:
Immigration detention centres (IDCs): These are used for people refused entry at international airports, those who have breached visa conditions, and over-stayers. Operating centres include:
- Villawood, New South Wales (established 1976)
- Maribyrnong, Victoria (established 1966)
- Perth (established 1981)
- Darwin (primarily for illegal fishing)
- Christmas Island (for unauthorised boat arrivals)
Immigration residential housing: Provides family-style accommodation for people required to remain in immigration detention. Facilities operate in Perth and Sydney, offering a less institutional environment than detention centres.
Immigration transit accommodation: Houses people assessed as low security risk. These facilities operate in Brisbane, Melbourne, and Adelaide, providing a transitional option between detention and community release.
Detention statistics
Detention Statistics (as of October 31, 2015):
Total in mainland detention facilities: 1,949 people
- Men: 1,616
- Women: 221
- Children: 112
Regional processing centres (offshore):
- Nauru: 621 people
- Manus Province, Papua New Guinea: 929 people
- Total offshore: 1,550 people
Community alternatives:
- People on bridging visa E: 29,019 (including 4,013 children)
- Community under residence determination: 632 people
These statistics demonstrate that while detention centres hold nearly 2,000 people, many more individuals are managed through community-based alternatives.
Exam guidance
When answering exam questions on breach of immigration laws:
Analysis questions: Examine the legal framework and explain how different consequences apply to different categories of people. Consider the balance between border control and individual rights.
Evaluation questions: Assess the effectiveness of deportation, removal, and detention in achieving policy objectives. Consider human rights implications and practical challenges.
Case study application: Be prepared to apply these legal principles to specific scenarios involving migrants who have breached immigration laws.
Command word recognition:
- Outline: Provide the main features of deportation, extradition, or detention processes
- Explain: Show how the legal framework operates and why certain consequences apply
- Assess: Make a judgment about the effectiveness or fairness of immigration law consequences
Key Consequences of Breaching Immigration Laws:
- Deportation applies to permanent residents who commit serious crimes or threaten security, requiring a ministerial order and allowing appeal rights
- Removal applies to those without legal permission to stay, including unsuccessful asylum seekers, with financial costs and 3-year re-entry bans
- Extradition requires dual criminality (minimum 1 year sentence in both countries), Attorney-General approval, and will not proceed if torture or death penalty risks exist
- Detention applies immediately to anyone without a valid passport, with current policy focusing on security risks rather than mandatory detention of all asylum seekers
- Only Australian citizens are protected from deportation - permanent residents can still be removed under certain circumstances
Key terms: deportation, removal, extradition, detention, over-stayer, bridging visa, Migration Act 1958 (Cth), Extradition Act 1988 (Cth), DIBP, Administrative Appeals Tribunal
Critical framework: Section 200 of the Migration Act 1958 (Cth) provides the primary legal authority for deportation, setting out the three main grounds: serious criminal convictions, multiple convictions, and security threats