If you do not hold a current valid Australian visa, you may be deemed to be an unlawful non-citizen and be subject to detention under the Migration Act 1958 (Cth).

Whilst Australia welcomes immigrants and visitors, foreign nationals wishing to travel to Australia must obtain a visa and ensure they hold a valid visa while in Australia. This means that people arriving in the country must do so lawfully and comply with the terms and conditions of their visa.

Detention

Immigration detention is part of Australia’s border control measures and supports policy objectives such as public safety and the integrity of Australia’s migration program.

Pursuant to section 189 of the Migration Act, an officer must detain a person whom they know or reasonably suspect to be an unlawful non-citizen.

Section 196 then provides that an unlawful non-citizen who is detained under section 189 must be kept in immigration detention until the person is removed from Australia, or deported from Australia, or granted a visa.

Removal from Australia

In accordance with section 198 of the Migration Act, unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable.

Removal from Australia may be implemented in situations where, for example, the unlawful non-citizen’s visa is cancelled because the Minister is satisfied that the person does not pass the character test, the person does not have a valid substantive visa application on foot, and they did not make representations about revoking the visa cancellation or they did so and the cancellation was not revoked.

In the recent decision of the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21, the majority considered that unlawful non-citizens can lawfully be held in immigration detention for an indefinite period of time. That is, the detention of a person who is an unlawful non-citizen is valid pending removal from Australia as soon as reasonably practicable.

Under section 197C, it is irrelevant for the purposes of removal under section 198 whether Australia has non-refoulement obligations, and the duty to remove the unlawful non-citizen from Australia arises irrespective of whether such obligations have been assessed.

However, pursuant to the federal Government’s Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (‘the Bill’), the executive is to undertake a protection assessment before considering removal of a non-citizen from Australia.

The Bill aims to protect from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. It follows that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.

Deportation

Section 201 of the Migration Act provides for the deportation of non-citizens who have been in Australia for less than 10 years, convicted of certain criminal offences and sentenced to imprisonment for one year or more.

Where a non-citizen is serving a term of imprisonment, a deportation order may be delayed until the person has served their term of imprisonment. In accordance with section 253 of the Migration Act, should the date of deportation not coincide with the date of release, the person may be held in immigration detention upon their release.

Contact

For further information, and advice tailored to your personal circumstances, please contact our Immigration Lawyers at The Migration Place.