Expulsion of aliens
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.
In international law, it is a matter for a country to determine under its own laws who may enter and remain in its territory.
The provision on expulsion of aliens requires the observance of procedural rights, rather than substantive rights, in the case of the expulsion of non-citizens lawfully within Australian territory. This means that the provision requires that certain procedural rights be afforded to a non-citizen who is liable for expulsion, but does not guarantee that non-citizens may not be expelled. The provision does not apply to the expulsion of a non-citizen who is not lawfully present in Australian territory.
Australia is a party to seven core international human rights treaties. The provision on expulsion of aliens is contained in article 13 of the International Covenant on Civil and Political Rights (ICCPR).
You will need to consider the provisions on expulsion of aliens when you are working on legislation, a policy or a program that:
- regulates, or leads to the removal from Australia of persons under migration laws
- regulates the surrender of persons under extradition laws
- provides for rights of appeal from or review of decisions or processes that lead to the removal or extradition of persons from Australia
- raises non-refoulement(non-return) obligations, or
- relates to issues of statelessness.
This list should not be regarded as exhaustive.
Procedural rights must be observed in the case of the expulsion of non-citizens who are lawfully within Australian territory. Expulsion decisions must be reached in accordance with law. Lawful non-citizens have a right to present arguments against expulsion, and to have their cases reviewed by and be represented before competent Australian authorities, except where compelling reasons of national security require otherwise.
Article 13 rights need not be accorded to non-citizens who are not lawfully present in Australian territory because, for example, they do not hold a valid visa or their visa has ceased.
The decision to expel must be authorised in accordance with the domestic law of the country concerned. The review need not be before a judicial body, if domestic law provides for review under administrative procedures. The UN Human Rights Committee has generally declined to interfere with submissions by countries that national security reasons affect the right of a non-citizen to review of a decision to expel, provided that those reasons properly fall within the ordinary meaning of 'national security' and the limitation of those rights appears necessary for those national security reasons.
While article 13 does not provide a substantive right of freedom from expulsion, other circumstances may give rise to substantive rights. These are discussed in the section 'Can the obligations under the provision on expulsion of aliens be limited?'.
The Convention Relating to the Status of Stateless Persons of 1954 requires that countries who are party to it (including Australia) not expel a stateless person lawfully in their territory except on grounds of national security or public order. The Convention also requires that the expulsion of a stateless person must result from a decision reached in accordance with due process of law, and that except where compelling reasons of national security otherwise require, the stateless person be allowed to submit evidence, to appeal to and be represented before a competent authority. Under the Convention, the term 'stateless person' means a person who is not considered as a national by any country.
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including those in relation to the expulsion of aliens'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.
As noted above, particular rights provided to non-citizens in expulsion proceedings can be limited in circumstances where compelling reasons of national security require. Limitation in these circumstances does not require derogation under article 4.
The Migration Act 1958 provides for review of many decisions made under the Act, by the Migration Review Tribunal, Administrative Appeals Tribunal and Refugee Review Tribunal. Judicial review of the decisions of those tribunals lies to federal courts.
Limitation of article 13 rights on clearly discriminatory grounds may raise the prohibition on discrimination in articles 2 and 26 of the ICCPR.
The substantive right of the country to expel a non-citizen may be limited beyond the obligations in article 13 in certain circumstances, namely:
- if the non-citizen is a refugee within the meaning of the 1951 Convention relating to the Status of Refugees, unless there are reasonable grounds for regarding the refugee as a danger to the security of Australia, or the refugee, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of Australia.
- if the non-citizen is owed non-refoulementobligations under the ICCPR, the Convention on the Rights of the Child (CRC) or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in cases involving the death penalty, arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment, including cases involving children).
- if the expulsion may affect the unity of a family, it would require consideration of whether the action might constitute arbitrary interference with the family under article 17, the protection of the family under article 23 or protection of children under article 24(1) of the ICCPR.
- if the non-citizen is a stateless person within the meaning of the 1954 Convention Relating to the Status of Stateless Persons, unless reasons of national security or public order justify expulsion.
International Covenant on Civil and Political Rights
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
- United Nations, Office of the High Commissioner for Human Rights, Human Rights Bodies (human rights treaty bodies that monitor implementation of thecore international human rights treaties)
- UN Human Rights Committee General Comment No 15
- Convention Relating to the Status of Stateless Persons of 1954