Australia’s policy of mandatory detention that arose in the early-1990s continues to assert that any non-citizen in the migration zone without a valid visa must be detained (see s 189 of the Migration Act 1958 (Cth) (Act)). This includes:
- unauthorised arrivals (those who arrive without a visa); and
- authorised arrivals (those who arrive with a valid visa that later expires or is cancelled).
If a person is detained, their release is contingent on:
- the grant of a visa so they can be released back into the community; or
- their voluntary departure or removal from Australia.
The information below provides a broad overview of the strict processes in place for a detained individual to stay in Australia. Of course, being detained is an incredibly complex issue, and so the below information should not be relied on alone. Anyone who is at risk of being detained, or already has been, would be strongly encouraged to contact a legal practitioner immediately.
What is the “migration zone”?
When speaking of the detention of unlawful non-citizens, we will often come across the term “migration zone”.
The migration zone is the geographical areas consisting of:
- Australia’s States and Territories (land, sea and ports);
- Australian resources installations (such as offshore wind energy facilities, drilling units, floating storage vessels); and
- Australian sea installations (such as artificial reefs, marine research facilities, oil and gas platforms).
To cut a long-story-short, the migration zone is synonymous with being “in Australia”. Being in the migration zone without Australian citizenship or a valid visa would make an individual an “unlawful non-citizen”.
Section 189: The mandatory power to detain unlawful non-citizens
The power for immigration officers to detain an unlawful non-citizen in Australia comes from s 189 of the Act.
Law makers clearly intended to impose a positive obligation on immigration officers, as the use of the words “must detain” (rather than “may”) in s 189 leaves no room for discretion, regardless of the non-citizen’s circumstances.
Immigration officers do have the discretion to detain a non-citizen outside of Australia’s migration zone in some very specific circumstances, such as when:
- it is suspected they will attempt to enter the migration zone unlawfully; or
- they are unlawfully in an “excised offshore place” (Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands).
Section 192: The discretionary power to detain visa holders facing cancellation
It’s worth mentioning that the power to detain does not just apply to unlawful non-citizens; but can also apply to people in Australia whose visa is at risk of cancellation.
This particular power comes from s 192 of the Act, rather than s 189.
Although this is not a mandatory provision, a visa holder may be detained if an immigration officer “knows or reasonably suspects” that their visa may be cancelled under:
- Subdivisions C, D, FA, or G of Division 3 (General cancellations); or
- Sections 501, 501A, or 501B (Character cancellations).
Within s 192 exists an officer’s power to question a visa holder, to determine if there is a risk of cancellation. Generally, the visa holder must be released within 4 hours.
What are a person’s options from within detention?
If a person has been detained, sections 193 – 195 of the Act is an important place to start. This legislation addresses the issues of:
- making detainees aware of the consequences of detention; and
- the narrow scope for detainees to make a further visa application; and
- the application of law to certain non-citizens while they remain in detention.
Section 194: Detainees must be notified of the consequences
Section 194 states that as soon as reasonably practicable, immigration officers must ensure that the detained person is made aware of:
- Section 195 (the timeframe to apply for a further visa – see below);
- Section 196 (duration of detention); and
- If the person has been detained as a result of a cancellation under s 137J (non-compliance with a Student visa); that they have the ability to apply for revocation of the visa cancellation in accordance with s 137K.
Section 195: Timeframe to apply for a further visa
A detainee still may have an opportunity to apply for a further visa to stay in Australia, but section 195 of the Act sets a very strict timeframe to do so.
A non-citizen in detention must submit their next visa application either:
- within 2 working days after the day on which they were notified of the consequences of detention (that is, the notification required in accordance with s 194); or
- if they inform an officer in writing within those 2 working days of their intention to apply for a further visa – within the next 5 working days after the initial 2 working days.
A detainee who does not apply for a visa within this legislated timeframe strictly loses the opportunity to apply for anything further, aside from a bridging visa or a Protection visa.
Section 193: Detainees to whom s 194 and 195 does not apply
Section 193 describes certain persons to whom the obligations of s 194 and 195 do not apply to.
The scenarios outlined in s 193 are incredibly specific, but generally is referring to detainees:
- who arrived in Australia as an unlawful non-citizen (by boat or by plane);
- detainees whose visa was cancelled personally by the Minister on character grounds;
- who are an unlawful non-citizen following the expiry of an enforcement visa;
- outside the migration zone who officers suspect will attempt to enter the migration zone unlawfully;
- unlawfully in an “excised offshore place” (currently Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands).
How can we help?
Anyone who is at risk of being detained, or already has been, would be strongly encouraged to contact a legal practitioner immediately. Given the limitations under s 194, it is important to lodge a further visa, or notify an officer of an intention to apply for a further visa within 2 working days to protect a persons interests.
Hannan Tew Lawyers have a dedicated private client practice, with significant experience dealing with cancellations, immigration detention and other complex issues.
If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
You can also subscribe to our newsletter here to stay up to date with the latest in immigration news.
