Aborted removal from Australia

Sch 1 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 commences on 2 Mar 2019: ‘when an unlawful non-citizen is in the process of being removed to another country and the removal is aborted… and as a direct result the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa’

The Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the new Act) received the Royal Assent on 1 March 2019.

The new Act contains Schedules 1 to 6. This article discusses Schedule 1 only, which commences on 2 March 2019.

Under s 42(1) of the Migration Act 1958 (Cth), a non-citizen must not travel to Australia without a visa that is in effect, subject to subsections (2), (2A) and (3).

Schedule 1 to the new Act replaces s 42(2A)(d) of the Migration Act, which read as follows until 1 March 2019:

Subsection (1) does not apply to a non-citizen in relation to travel to Australia:

(d)  if:

(i)  the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and

(ii)  the non-citizen travels to Australia as a direct result of that refusal; and

(iii)  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen;

The above provisions were replaced by the following ones:

Subsection (1) does not apply to a non-citizen in relation to travel to Australia:

(d)  if:

(i)  an attempt to remove the non‑citizen under section 198 to another country was made but the removal was not completed; and

(ii)  the non‑citizen travels to Australia as a direct result of the removal not being completed; and

(iii)  the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or

(da)  if:

(i)  the non‑citizen has been removed under section 198 to another country but the non‑citizen does not enter the other country; and

(ii)  the non‑citizen travels to Australia as a direct result of not entering the other country; and

(iii)  the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen

The new Act also adds s 48A(1AB) into the Migration Act:

(1AB)  If:

(a)  an attempt was made to remove a non‑citizen from the migration zone under section 198 but the removal was not completed; and

(b)  the non‑citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);

then, for the purposes of this section, the non‑citizen is taken to have been continuously in the migration zone despite the attempted removal.

The explanatory memorandum explains the above amendments as follows:

  1.  Current paragraph 42(2A)(d) is repealed and substituted by new paragraphs 42(2A)(d) and 42(2A)(da) as current paragraph 42(2A)(d) would be redundant as a consequence of new paragraph 42(2A)(da). New paragraph 42(2A)(da) covers a broader range of situations than current paragraph 42(2A)(d), including any situation to which current paragraph 42(2A)(d) may have applied.
  2.  New paragraph 42(2A)(d) provides that subsection 42(1) does not apply to a non-citizen if:
  •  an attempt to remove the non-citizen under section 198 to another country was made but the removal was not completed; and
  •  the non-citizen travels to Australia as a direct result of the removal not being completed; and
  •  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.
  1.  This captures the situation where an unlawful non-citizen is being removed under section 198 to a destination country but, before reaching the destination country, the removal is aborted and the non-citizen must return to Australia as a result.
  2.  New paragraph 42(2A)(da) provides that subsection 42(1) does not apply to a non-citizen if:
    •  the non-citizen has been removed under section 198 to another country but the non-citizen does not enter the other country; and
    •  the non-citizen travels to Australia as a direct result of not entering the other country; and
    • the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.
  1.  This paragraph captures the situation where an unlawful non-citizen has been successfully removed from Australia, but has not yet entered their destination country.
  2.  The purpose of new paragraph 42(2A)(d) is to cover the situation where a removal is attempted but not completed, while new paragraph 42(2A)(da) is inserted to cover the situation where a removal is completed but the non-citizen does not enter the destination country.
  3.  New paragraphs 42(2A)(d) and 42(2A)(da) are intended to work together to allow a non-citizen removed under section 198 of the Migration Act to return to Australia without holding a visa if it becomes necessary at any point after they leave Australia until they enter their destination country. New paragraph 42(2A)(d) applies to a non-citizen from the point they leave Australia until their removal is completed, while new paragraph 42(2A)(da) applies to a non-citizen from the point where their removal is completed until they have successfully entered the country to which they have been removed (the destination country).
  4.  A need to return to Australia a non-citizen who has been removed, or is in the process of being removed, could arise for a number of reasons. For example – the non-citizen could be refused entry to a transit country, an aircraft could be forced mid-flight to return to Australia, the Government could decide to cancel the removal in response to an Interim Measures Request from the United Nations, or, despite being successfully removed from Australia, the non-citizen could be refused entry into the destination country.
  5.  Paragraph 42(2A)(da) is similar to, but broader than, current paragraph 42(2A)(d). While current paragraph 42(2A)(d) applies to non-citizens who have been refused entry to the destination country, new paragraph 42(2A)(da) is broader as it applies to non-citizens who do not enter the destination country. In addition to the non-citizens to whom current paragraph 42(2A)(d) applies, new paragraph 42(2A)(da) will apply to people who do not enter the destination country for reasons other than being refused entry by the destination country.
  6.  Paragraph 42(2A)(da) is needed because new paragraph 42(2A)(d) only covers a non-citizen prior to the removal being completed. A removal is completed when the non-citizen arrives in the destination country, but the removed non-citizen does not enter the destination country until they are accepted into that country. Paragraph 42(2A)(da) covers a non-citizen in this in-between stage where the removal has been successfully completed, but they have not yet entered the destination country.
  7.  The broadened scope of paragraph 42(2A)(da) as compared to current paragraph 42(2A)(d) is intended to allow for greater flexibility in returning a removed non-citizen to Australia.

Disclaimer: the above is a mere tentative analysis of a new piece of legislation. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au