Unlawful Non-Citizens in Australia
The Migration Act 1958 (the ‘Act’) provides the legislative requirements for the definition of ‘unlawful non-citizen’.
You might be curious how a person can meet that definition.
You may wonder about the implications of being an unlawful non-citizen and be interested in hearing if there is anything that someone meeting that definition can do about it.
If these questions interest you and you want to know the answers, read on!
How someone can meet the definition of being an ‘unlawful non-citizen’
The starting point for understanding who might meet the definition of ‘unlawful non-citizen’ is section 13 of the Act. That section explains that a ‘lawful non-citizen’ is someone in Australia who holds a visa that is in effect. Anyone in Australia that is not an Australian citizen and who holds a visa that has not ceased or been cancelled is a ‘lawfully non-citizen’.
A limited number of Papua New Guinea citizens engaged in ‘traditional activities’ (such as fishing) in the ‘protected area’ (the Torres Straits) do not need to hold an Australian visa for that purpose in that location. It is a very minor exception to the rule. Everyone else that isn’t an Australian citizen needs to hold a visa that is in effect to be lawful.
Section 14 provides that anyone in Australia that is not an Australian citizen and that does not meet the definition of being a ‘lawful non-citizen’ is an ‘unlawful non-citizen’.
In short, if a person is in Australia, they are not an Australian citizen, and they do not hold a visa that is in effect, then they are an ‘unlawful non-citizen’.
How someone can become ‘unlawful’
There are a couple of common ways that a non-citizen in Australia can become unlawful.
One way a person can become unlawful is when the visa holder ‘overstays’ their visa. Most Australian temporary visas grant a permission to remain in Australia until a particular point in time. After that date, if the visa holder has not left Australia, they have overstayed.
An interesting exception to this rule is the subclass 444 visa granted to most New Zealand citizens upon their arrival in Australia. The visa is considered a temporary visa, but it does not have any pre-determined visa expiry date. It is not possible for a New Zealand citizen holding a subclass 444 visa to become unlawful by overstaying their visa.
Other temporary visa holders can (and sometimes do) overstay their visa deadline. Some do so quite innocently. These days, ‘visa labels’ are not physically pasted into the visa holder’s passport. Visa grant notifications are most commonly attached as documents to emails. A person could enter Australia and unintentionally misconstrue their visa deadline or forget the expiry date.
Some temporary visas have ‘re-entry’ rights. A one-year visa is granted to a working holiday maker applying from offshore for their visa. They might depart Australia after arriving here, visit New Zealand for a few months, and later re-enter Australia. The one-year period runs from the date the working holiday visa maker first enters Australia. The ‘clock’ is not put on hold while they are in New Zealand. The time spent outside Australia is not ‘added’ to the end. The working holiday visa maker might not understand that reality though, inadvertently overstay their visa, and become an ‘unlawful non-citizen’ as a result.
Of course, some visa holders are culpable for their unlawful status because they have intentionally overstayed their visa. Some might overstay because they are in love with someone here, and unable to endure the thoughts of their relationship ending. Some might overstay because they are avoiding family troubles they have at home. Others are working illegally and want to stay as long as possible because they repatriate their savings to support their loved ones. There are countless reasons why a person might intentionally decide to not leave before their visa expiry date. If they overstay, they are ‘unlawful non-citizens’.
Another common way that a non-citizen can become unlawful is when their visa is cancelled. Almost always, a visa is cancelled because the visa-holder has engaged in some sort of wrongdoing. The wrongdoing does not necessarily mean that they have engaged in criminal conduct. A Student visa holder could have their visa cancelled if they stop attending classes or are unable to pass subjects. A person holding a Visitor visa (normally) will not have the right to work. Their visa could be cancelled if they choose to work anyway without permission and they are detected by the authorities. A visa holder that is required to maintain adequate arrangements for health insurance could experience visa cancellation if they allow their insurance cover to lapse. These are examples of visa cancellation that has arisen because the visa holder has failed to comply with conditions imposed upon their visa.
A person’s visa could be cancelled under section 116 of the Act because their presence in Australia might be a risk to the health, safety or good order of the Australian community. Novak Djokovic’s visa cancellation matter is an example of this.
Yet another example is a visa cancellation because of a failure to provide correct information in their visa application.
There are dozens of reasons why a person’s visa might be cancelled that have nothing to do with criminal activity. All of the above are examples of visa cancellation under ‘general’ grounds.
A visa can also be cancelled because the visa holder has engaged in criminal offending. These cancellations are made under ‘character’ grounds. Cancellations under ‘character’ grounds can be either discretionary or mandatory, depending upon the circumstances.
Whether a person’s visa has been cancelled under ‘general’ grounds or under ‘character’ grounds, their visa will cease upon the cancellation. When the visa ceases, if they are in Australia and they no longer hold a visa that is in effect, they immediately become an ‘unlawful non-citizen’.
In addition to overstaying their visa and experiencing a visa cancellation, a person that has arrived in Australia without holding or being granted a visa would also be an ‘unlawful non-citizen’.
Implications of being an ‘unlawful non-citizen’
If an ‘unlawful non-citizen’ comes to the attention of the Department of Home Affairs, the person is subject to mandatory detention. The compliance officer must know or reasonably suspect that the person is unlawful.
Interestingly, an ‘unlawful non-citizen’ does not necessarily need to be detained in an Immigration Detention Centre (‘IDC’). Under section 197AB of the Act, the Department has the discretionary power to make a determination that an ‘unlawful non-citizen’ is to reside at a specified place instead of being detained in an IDC. Immigration Residential Housing, Immigration Transit Centres, Alternative Places of Detention (hotels); and Community Detention are all examples of facilities that an ‘unlawful non-citizen’ may be held.
Detention is one of the tools the Department uses to help maintain the integrity of the immigration system. ‘Unlawful non-citizens’ that present unacceptable risks to the community and those that have repeatedly failed to comply with conditions imposed on their visa would likely be placed in an IDC. Children and vulnerable non-citizens would be detained in more appropriate facilities.
The Act under section 198 also empowers the Department of Home Affairs to ‘remove’ the ‘unlawful non-citizen’ from Australia. They cannot be ‘deported’ because deportation only applies to someone that holds a visa that is in effect. The Australian government has not deported anyone for years! The person will have their visa cancelled, and ultimately could be removed from Australia unless they are able to regularise their immigration status.
What an unlawful non-citizen can do about it
Readers might think that it is obvious what an ‘unlawful non-citizen’ should do. They should buy an airline ticket and go home!
That isn’t the good idea that it might seem.
Unlawful non-citizens should seek advice from an Immigration Lawyer before making any decisions. Depending upon the particular circumstances, it may be possible to ‘regularise’ their visa status. There are a handful of onshore visa applications that may be lodged (and granted) despite a person’s immigration status.
Buying an airline ticket might not be a great solution if the person doesn’t have a valid passport. Trying to board an aircraft without first obtaining a bridging visa will mean an unwanted interview with Australian Immigration Compliance officers prior to boarding, and the imposition of re-entry prohibitions that can last for years.
Why choose Potts Lawyers to advise you
Potts Lawyers Immigration Law team has been helping ‘unlawful non-citizens’ for years, whether they overstayed their visa deadline, or because they experienced a visa cancellation.
We offer a no-obligation initial consultation at no charge. We can discuss timeframes, processes, costs, and outcomes with the ‘unlawful non-citizen’ to help them decide the most advantageous next step.