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Who are unlawful non-citizens?

A lawful non-citizen is a person who holds a visa and is within Australia Classification of an unlawful non-citizen is simple: an unlawful non-citizen is someone who enters Australia or remains in Australia without a valid visa.

Becoming an unlawful non-citizen

Entering Australia without a visa will make you an unlawful non-citizen, but so will overstaying a visa, or breaching the conditions of a visa. It can also occur if the Department of Immigration cancels your visa. For example, if on a tourist visa and found committing an offence, you will be subject to detention and removal. There are also circumstances where a visa may be cancelled, making an individual an unlawful non-citizen.

Cancelling a visa

A visa can be cancelled if:

  • incorrect information was provided by an applicant to DIAC;
  • visa conditions were breached;
  • a business skills visa holder failed to establish the business or participate in management;
  • the person has committed a criminal offence after they became a permanent resident; or
  • the person is of bad character.

Generally, the power to cancel is discretionary. In most cases the visa holder will get prior warning of DIAC's intention to cancel the visa. The visa holder is then able to give all the reasons why their visa should not be cancelled.  If DIAC decides to cancel, the former holder will usually have a right of review. If a tourist visa holder has breached Australian law, this right of review is highly unlikely.

Options

Unlawful non-citizens have three options:

  • to try and stay in Australia unlawfully and hope to avoid detection;
  • depart voluntarily; or
  • attempt to change their status and obtain a visa.

Unlawful citizens should obtain confidential advice from a registered migration agent when considering their options.

Detention and Removal

DIAC has the power to question people who they suspect are unlawful non-citizens, get information from other government departments such as Centrelink and the Australian Tax Office, raid and search homes, work-places, and other premises, and sometimes search people.

Unlawful non-citizens who have been arrested will be placed in immigration detention. An unlawful non-citizen will only be released from detention if they obtain a bridging visa. DIAC may issue bridging visas in the following circumstances:

  • when the detainee has made a valid application for another visa;
  • when the detainee has agreed to depart Australia voluntarily.

A refusal to grant a bridging visa may be reviewed by the Migration Review Tribunal. More information on the conditions of the bridging visa are available online.

Generally, a person in detention has only two days in which to make an application.  People in immigration detention are only entitled to independent legal advice if they ask for it.

Criminal Deportation

People who have been permanent residents (including New Zealand citizens resident in Australia) for less than a total of 10 years can be deported if they are convicted of an offence and sentenced to prison for at least one year.

Criminal deportation decisions may be reviewed by the AAT.

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