Unlawful Residents

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Unlawful Residents:

If you fall foul of Australia’s immigration laws while in the country, you will be deemed ‘unlawful’, and are likely to be detained and/or deported back to your country.

Under the Migration Act 1958, non-Australians who don’t have a valid visa to remain must be detained. Unless they are granted a visa, such unlawful non-citizens must be removed from Australia as soon as reasonably practicable.

Q. Who is ‘unlawful’?

People in Australia, who are not Australian citizens, and do not hold a valid visa are unlawful non-citizens. This could have happened because:

  • they arrived here without a visa
  • they overstayed their visa
  • their visa was cancelled.

Q.   What if I challenge a removal decision?

A challenge can actually lengthen your time in detention. Placement decisions for people in immigration detention consider each individual's circumstances and risks, seeking a balance between the best interests of the individuals, particularly children, and security. This might include:

  • The individual's character, any identity and security issues, age and family composition, health and well-being
  • Any unique or exceptional circumstances
  • Their cooperation with immigration processes
  • The likelihood of the person's compliance with any conditions (such as reporting regularly, staying at the specified address and not working).

Q.   How long would I be held in detention?

Detention is not limited by a set timeframe but is dependent upon a number of facts, including identity determination, developments in country information and the complexity of processing due to individual circumstances relating to health, character or security matters.

Q.   What happens if I am declared unlawful?

Unlawful non-citizens are liable for detention. They might be granted a visa, removed from Australia or transferred to a regional processing centre in a regional processing country. The Republic of Nauru is currently designated as a Regional Processing Country. 

Q.   What are detention facilities like?

There are different types of detention facilities in Australia. These range from prison-like detention centres, intended for medium to high risk detainees, to self-catering residential housing within the community. There are also transit centres and alternative facilities for people in special circumstances such as medical need. Sometimes hotel rooms are used as detention for low-risk detainees. Basic food, healthcare, leisure and education needs are met, and there is freedom to practise religion. All Australian immigration detention facilities are regularly visited by the Commonwealth Ombudsman's Office, the Australian Human Rights Commission, the Australian Red Cross, pastoral care providers and representatives of community groups.

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