Other Australian Specialist Areas:
Unlawful Non-Citizens - Illegal Immigrants

Unlawful non-citizens are people who have no legal right to be in Australia. Their activities are quite restricted, including their ability to apply for visas. They can even be detained and removed from Australia. After leaving Australia, they may also face restrictions on their ability to return.

Information below may help you to better understand:

• The status of unlawful non-citizens
• The process by which a person becomes unlawful
• The consequences of that status for a person and their family
• The circumstances in which a person's visa can be cancelled and the consequences of such cancellation for a person and their family

Unlawful Non-Citizen Australian Overview
Rights to Apply for Australian Visas
Removal from Australia
Ability to Return to Australia

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Unlawful Non-Citizen Australian Overview

Australia's migration system is based on control over who is allowed to enter Australia through a visa system. Anyone who is not an Australian citizen must hold a valid visa to be legally in Australia.

The terminology for people who are neither Australian citizens nor the holders of valid visas has changed regularly. At various times, such people have been prohibited non-citizens, illegal immigrants and illegal aliens. Under the present legislation, the terminology used is unlawful non-citizen.

A person can become an unlawful non-citizen either by entering Australia without a visa or by remaining in Australia when they no longer possess a visa, either because it has expired or been cancelled.

Current Australian Government estimates are that there are approximately 46,000 unlawful non-citizens in Australia, of which 26,200 have remained here unlawfully for more than 5 years. The largest groups of unlawful non-citizens in Australia come from the United Kingdom and the USA.

Detention of unlawful non-citizens:

Divisions 6 and 7 of Part 2 Migration Act govern the detention of unlawful non-citizens. Division 6 relates to the detention of designated persons -- essentially people who traveled to Australia by boat prior to 1 September 1994 and were not granted a visa. This Division was introduced with retrospective effect because of a Court challenge to the legality of the detention of certain of the 'boat people' held in the Port Headland Detention Centre prior to that date.

Division 7 of the Migration Act applies to people who became unlawful non-citizens prior to 1 September 1994 - including the 'boat people.' The effect of the Division is that unlawful non-citizens must be kept in 'immigration detention.' The Migration Act provides that a person suspected of being an unlawful non-citizen must be detained unless and until they:

• Establish their Australian citizenship
• Show evidence of being a lawful non-citizen (for example, holding a valid visa)
• Are granted a visa

A court may not release an unlawful non-citizen detained, otherwise than for the purpose of removal from Australia or deportation, unless he or she is granted a visa.

Access to legal/migration advice while in detention:

Unlawful non-citizens in detention other than those detained because they have not been immigration-cleared or have been refused a visa on character grounds must be advised of their right to apply for a visa, and that if they do not apply for or are not granted a visa, they must be removed from Australia.

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Rights to Apply for Australian Visas

The only way in which an unlawful non-citizen can secure release from detention is to be granted a visa. That is not easily achieved because the Migration Act and Regulations contain restrictions on the applications which unlawful non-citizens are able to make. The Migration Act creates a distinction between bridging visas and substantive visas (defined as 'a visa other than a bridging visa or a criminal justice visa').

Bridging visas:

Bridging visas are designed to allow non-citizens to remain legally in Australia whilst they:

• Make arrangements to leave
• Apply for a substantive visa
• Await the outcome of an application for merits or judicial review of a decision to refuse them a substantive visa
• Seek the intervention of the Minister to grant them a visa to which they are otherwise not entitled under the Regulations
• Serve a criminal sentence in an Australian prison

If an application for a bridging visa is refused, a further application cannot be made for 30 days.

A central requirement for the grant of a bridging visa is that the applicant satisfies the Department of Immigration that he or she will abide by any conditions, which may be imposed on the visa if one is granted. The Australian Government's policy guidelines (issued 21 April 1999) state:

In determining whether the applicant is likely to abide by the conditions imposed, officers should have regard to the applicant's immigration history and any past dealings with the Department. The following factors may be taken into account:

• Whether the applicant has been identified to the satisfaction of the officer
• Whether the applicant has co-operated with the Department in its dealings with him/her
• Whether the applicant is a previous removee/deportee
• Whether the applicant has committed any breaches of the Act or Regulations
• Whether the applicant has breached the conditions of any previous bridging visa
• Whether the applicant has previously absconded from immigration detention or other custody
• The applicant's conduct during any period of immigration detention
• The strength of the applicant's ties to the Australian community
• Whether the applicant has had a visa cancelled or a substantive visa application refused in Australia
• Whether the grant of a bridging visa to the applicant is in the best interests of the community

In order to apply for a bridging visa, non-citizens must be eligible non-citizens, meaning that they must have been immigration cleared or that they must come within certain groups of persons prescribed by the Migration regulations. Non-citizens in immigration clearance cannot make a valid application for a bridging visa.

Unlawful non-citizens can only apply for a subclass 050 bridging visa E, and can only do so if not an eligible non-citizen of the kind referred to in Migration Regulations.

Substantive visas:

The eligibility of unlawful non-citizens to apply for substantive visas depends upon the criteria for the subclass of visa for which they wish to apply. Generally those criteria will require them to satisfy one or more of the illegals' criteria set out in the Migration Regulations. The two most common of these illegals' criteria are clauses 3001 and 3002, which respectively require that an application be made within 28 days and 12 months of the expiry of the applicant's previous substantive visa.

Clause 3001 applies to temporary visas such as the student, medical treatment and tourist subclasses and the spouse and interdependency permanent visa subclasses. Accordingly, an unlawful non-citizen can only apply for these visas within 28 days of the expiry of their last substantive visa.

Clause 3002, on the other hand, applies to the business (long stay), retirement, entertainment, sport, religious worker, and occupational trainee temporary visas, and to the aged parent, family, spouse and interdependency permanent visas.

Clause 3004 applies to a range of common temporary visas such as business, tourist, medical treatment, retirement, working holiday, entertainment, sport, religious worker, and occupational trainee visas, and important permanent visas such as the skilled, spouse and interdependency visas. If this clause applies, an applicant must show among other things, that:

• He or she was not the holder of a substantive visa at the time of the application because of factors beyond his or her control
• There are compelling reasons for the grant of the visa

In the case of Bedwell v Minister for Immigration and Ethnic Affairs (1992) 33 ALD 368, where the Applicant had placed the lodgement of his application in the hands of his solicitor who lodged it after the expiry date of his visa, the Federal Court refused to set aside a decision that the Applicant was illegal because of factors beyond his control. In Re Yagi [1997] IRTA 9556 (21 May 1997), the former Immigration Review Tribunal commented:

"What the decision in Bedwell illustrates is that it is a question of fact and of degree whether the circumstances which led to the expiry of a person's visa in a particular case amount to factors beyond their control. In the circumstances of this case, while the Tribunal accepts that the applicant's visa expired through an unfortunate set of circumstances, it is difficult to see how by placing the matter of his immigration status in the hands of his employer and sponsor, Mr Vertzyas, he can be said to have abdicated control of his own migration status.

The Tribunal considers that the circumstances here must be distinguished from cases where an applicant has become illegal through the expiry of a visa whilst their application for another visa was under consideration by the Department (see Re Canty (IRT Decision 1688, 16 February 1993), or where an applicant has placed the extension of their visa in the hands of another person who in the normal course of events takes responsibility for such matters (see Re Norris (IRT Decision 6352, 20 December 1995) and Re Fadil Hassan (IRT Decision 5897, 13 September 1995)). Even then, the Tribunal notes that in both Re Norris and Re Fadil Hassan it was necessary for the applicant to rely upon another person to lodge their application because of the circumstances in which they found themselves."

Often unlawful non-citizens will be people who have previously had a visa application in Australia refused, and will thus be subject to s.48 and possibly s.48A of the Migration Act. These sections restrict the ability of non-citizens who have had a visa application refused to make further applications without leaving Australia. Section 48A applies only to those seeking to make a second protection visa application, and operates to prevent such an application being made unless it is founded upon circumstances, which have arisen since the previous application was made.

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Removal from Australia

Non-citizens who are refused or who bypass immigration clearance do not have to be told of any rights they may have to make any application for a visa, and must be removed from Australia as soon as reasonably practicable.

A non-citizen in immigration detention who is entitled to apply for a visa but does not do so or who has made an application which has been finally determined and has not made another valid application for a substantive visa that can be granted while the applicant is in the migration zone must be removed from Australia as soon as reasonably practicable.

The concept of deportation now only applies to persons who have been in Australia as a permanent residents for less than 10 years who are convicted of a criminal offence and sentenced to at least one year in prison.

Non-citizens who are detained, removed or deported are liable to pay to the Australian Government the costs of their detention, removal or deportation.

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Ability to Return to Australia

The Migration Regulations contains special re-entry criteria, which apply to certain overseas applicants who have previously been in Australia, primarily those who have previously been removed or deported from Australia. The criteria provide for the imposition of exclusion periods of varying lengths depending upon the category into which the visa applicant falls. The exclusion periods can be waived for those previously removed from Australia in some circumstances, generally upon establishing compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident.

There are no provisions for waiver of the special return criteria for applicants who have been deported or whose visas have been cancelled or refused under the character provisions of the Migration Act.

Also relevant are conditions 4013 and 4014 of Schedule 4 of the Migration Regulations, which govern persons who:

• Had a visa cancelled under s.116 of the Migration Act for failure to comply with the conditions of their visa, including working in breach of visa conditions; or
• Left Australia as an unlawful non-citizen more than 28 days after the expiry of their substantive visa; or
• Left Australia as the holder of a bridging visa class C, D or E, unless the bridging visa was granted while the person held a substantive visa or within 28 days of the expiry of their last substantive visa.

In these circumstances, a person cannot be granted a visa for which they are required to satisfy these conditions unless they apply for the visa more than three years after leaving Australia, unless there are compassionate or compelling circumstances affecting an Australian citizen or permanent resident or compelling circumstances affecting the interests of Australia.

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