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Immigration detention
Everything you need to know about immigration detention in Australia
The Australian government has long maintained a policy that ‘unlawful non-citizens’ in Australia’s migration zone are detained unless they are afforded legal status (usually in the form of bridging visas) while they make arrangements to depart Australia or apply for another type of visa.
Australia’s mandatory immigration detention framework is outlined in the Migration Act. While immigration detention is stated to not be a punitive measure, being placed in mandatory immigration detention can often be a confronting and stressful time for individuals seeking to come to Australia.
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What is immigration detention?
Australia’s migration framework requires that all non-citizens who are in Australia without a valid visa, whether they arrive without a visa or have their current visa cancelled, are placed in mandatory detention. This is because the Australian government states that immigration detention forms part of strong border control and upholds the integrity of the Australian migration framework. Primarily, immigration detention is administered by the Department of Home Affairs and the Australian Border Force.
Individuals who are subject to Australia’s mandatory detention policy are then held in a detention facility. Immigration detention facilities include immigration detention centres (such as the Villawood Immigration Detention Centre or Christmas Island Immigration Detention Centre), Immigration Transit Accommodation and alternative places of detention (such as hospitals, hotels and aged care facilities where necessary). Individuals should be aware that while Australia shut down its detention centre on Manus Island (Papua New Guinea), Australia still operates detention facilities offshore.
Individuals who the detention laws apply to are temporarily confined in an immigration detention facility until their legal status is resolved. Individuals can only be mandatorily detained by the Australian government while the Department of Home Affairs is either determining whether to permit the individual to make a visa application, investigating a visa application made by an individual to enter and remain in Australia or to organise their removal from Australia.
What are the causes for immigration detention?
While the Australian government attempts to resolve the immigration status of unlawful non-citizens within the community (such as by provisioning bridging visas), where it is inappropriate to do so or in certain circumstances (such as where a high risk to the Australian Community exists), the Australian government will hold individuals in mandatory detention. An individual who is in Australia without a valid visa is deemed to be an unlawful non-citizen.
An individual can be within Australia as an unlawful non-citizen as they have:
- Arrived unlawfully in Australia (including situations involving unauthorised boat arrivals or where individuals are seeking asylum without valid travel documents)
- Had their visa cancelled while they were in Australia
- Held a valid visa which has expired but are remaining in Australia
Under the Migration Act, Australian Border Force officers must detain unlawful non-citizens who are without a valid visa.
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What to do if you have been detained?
Once an individual has been detained in immigration detention, it is recommended that they seek professional assistance from a Migration Lawyer. This is because the circumstances and situations of individuals who have been deemed unlawful non-citizens and subsequently detained are unique and differ from person to person.
Individuals should be aware that there are circumstances that may allow for them to be released from immigration detention while their immigration status is being resolved. This includes where individuals are eligible for a bridging visa or when families with children arrive and are detained.
Individuals need to acknowledge they will only be released from immigration detention in Australia if they are granted a visa or removed from Australia. Therefore, for individuals seeking to remain in Australia, they should seek relevant advice regarding any potential visa options, avenues of review or grounds for appeal. As an individual’s rights are limited and strict timeframes apply in Australia’s immigration framework, individuals should not hesitate to seek professional assistance.
Benefits using an Australian Migration Lawyer
At Australian Migration Lawyers, we recognise how difficult being in immigration detention is. Resultantly, we are committed to providing individuals with support and guidance through what can be a complex, confusing and uncertain process.
An Australian Migration Lawyer can assist individuals through providing relevant information and specific advice, explore available options for an individual’s release from detention and assess an individual's eligibility for a valid visa within Australia. Furthermore, at Australian Migration Lawyers we are knowledgeable and experienced in seeking review of adverse decisions at Australia’s administrative review tribunals or representing clients at Australia’s Federal Courts.
Frequently asked questions
Read our most frequently asked questions.
What is the 116 policy in Australia?
Australia's 116 policy, outlined in the Migration Act, delineates grounds for the cancellation of visas. Section 116 (1) specifies these grounds, applicable to temporary visas regardless of the holder's location and to permanent visas only when the holder is offshore. Additional grounds outlined in sections 116 (1AA), (1AB), and (1AC) allow for cancellation of both temporary and permanent visas, regardless of the holder's location. Upon issuing a section 119 notice, the visa holder is provided an opportunity to respond to the cancellation grounds and challenge their validity. This notice enables the delegate to cancel the visa if deemed appropriate after considering the holder's response.
Can I appeal a 116 visa cancellation?
A non-citizen whose visa is cancelled under section 116 of the Migration Act lacks the option to request reversal of the decision, as there is no legal provision for such action. However, non-citizens within Australia can seek a merits review of the cancellation decision by applying to the Administrative Review Tribunal. For those whose visas are cancelled onshore under section 116, there is a seven-working-day window from the notification date to lodge an appeal with the Administrative Review Tribunal, not with the Department.
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About the content author
Perry Q Wood is Immediate Past President of the Australian Institute of Administrative Law and one of Australia’s leading administrative and migration lawyers. To date, he has been involved in 1,000+ migration and refugee matters.
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