Removal and deportation from Australia of non-citizens who do not have a valid visa to enter or remain in Australia has serious consequences. If your visa has been cancelled or your visa has expired will cause you to become an unlawful non-citizen.
Australian Migration law requires the detention of all non-citizens who are in Australia without a visa. If you are in Australia without a valid visa, you are known as an unlawful non-citizen. The Migration law requires all non-citizens who arrive in Australia without a visa (they are known as “unauthorised arrivals”), or those who arrive with a visa and their visa subsequently expired or cancelled to be detained. Children will also be detained if their visa have been cancelled or expired. This is known as mandatory detention which was introduced in 1992 to stop Indochinese unauthorised boat arrivals. Initially the maximum period of detention was 273 days or 9 months pending removal and deportation from Australia but was removed to allow for indefinite detention.
Unlawful non-citizens may be detained in 1 of the following Immigration Detention Centres or IDCs:
- Victoria – Maribyrnong
- NSW – Villawood
- WA – near the airport, Curtin and Yongah Hill (Northam)
- Christmas Island
- NT – Berrimah and Wickham Point
- QLD – Scherger
- Tasmania – Pontville
Unlawful non-citizens (whose visa has been cancelled or visa has expired) who are considered as low security risk may be detained in Immigration Transit Accommodation or ITAs which are available in Brisbane, Melbourne (Broadmeadows) and in Adelaide (Kilburn) pending removal and deportation from Australia.
According to the Department (on 31 May 2020) the average period of time for unlawful non-citizens held in immigration detention facilities pending removal and deportation from Australia was 553 days.
Can immigration detention be unlawful?
In the case of AJL20 v Commonwealth of Australia  FCA 1305, AJL20 is a citizen of Syria who came to Australia on a Child Subclass 101 visa (click here for more information on Child visa) in May 2005. In October 2014 his visa was cancelled on character grounds under s 501(2) (click here to learn more about character test). After his visa was cancelled, AJL20 became an unlawful non-citizen and was detained under s 189(1) pending removal and deportation from Australia.
The Minister accepted that Australia has protection obligations not to return him back to Syria but refused to grant AJL20 a protection visa under s 195A. Under s 198(6) the Department was obliged to remove AJL20 from Australia as soon as reasonably practicable.
Immigration detention is for removal and deportation from Australia
Immigration detention is only lawful if the detention is for the purpose of removing the unlawful non-citizen as soon as reasonably practicable from Australia (s 196 must be read together with s 198).
Section 189(1), if an officer knows or reasonably suspects that a person in Australia is an unlawful non-citizen, the officer must detain the person.
Section 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until:
- he or she is removed from Australia under s 198 or 199; or
- an officer begins to deal with the non-citizen under subsection 198AD(3); or
- he or she is deported under s 200; or
- he or she is granted a visa.
Section 198(1) requires an officer must remove as soon as reasonably practicably an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Section 198(6) requires an officer must remove as soon as reasonably practicable an unlawful non-citizen if:
- the non-citizen is a detainee; and
- the non-citizen made a valid application for a substantive visa that can be granted while in Australia; and
- one of the following applies
- the grant of the visa has been refused and the application has been finally determined; and
- the visa cannot be granted; and
- the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in Australia.
AJL20 appealed to the FCA claiming that:
- immigration detention of an unlawful non-citizen is lawful only if it for a permissible purpose.
- section 198 requires unlawful non-citizen to be removed from Australia as soon as reasonably practicable.
- if he was not removed from Australia, his detention is unlawful because his detention is no longer for a permissible purpose.
- since July 2019 the Department did not pursued or carried out his removal as soon as reasonably practicable, his detention since that time has not been for the purpose of his removal from Australia and is unlawful.
- because his detention was unlawful, he was falsely imprisoned and is entitled to damages and the Department must release him from detention (habeas corpus).
The Minister accepted that since July 2019 the purpose of AJL20’s detention has been his removal and deportation from Australia, and under s 198 AJL20 was to be removed from Australia as soon as reasonably practicable. However, the Minister argued that s 196(1) permit AJL20 to be detained lawfully “until” he is in fact removed from Australia irrespective of whether or not that removal is carried out as soon as reasonably practicable. The Minister further argued that if AJL20 was not removed as soon as reasonably practicable, the only remedy (an order of mandamus) available to AJL20 was to force the Minister to order his removal and deportation from Australia as soon as reasonably practicable.
In Plaintiff S4/2014 v MIBP (2014) 253 CLR 219, the Court said that the Minister could only lawfully detain unlawful non-citizens for the following purposes:
- removing unlawful non-citizen from Australia;
- receiving, investigating and determining an application for a visa to enter and remain in Australia;
- determining whether to permit the applicant to make a valid application for a visa; or
- possibly, determining whether to grant a visa without an application by the applicant.
The Court said that there were 2 periods of AJL20’s detention; 1st was from 26 July 2019 to 27 November 2019 where the Minister accepted that no active steps were taken to remove AJL20 from Australia, and 2nd was from 28 November 2019 to the date of judgement during which the Minister pursued the possibility of returning AJL20 to Lebanon (but not Syria).
The Court said that since 26 July 2019, AJL20 was not removed from Australia as soon as reasonably practicable because no steps at all have been taken to remove him to Syria, the country of his nationality. That failure was due to a recognition of Australia’s obligations not to refoul him to Syria. However, s 197C required that Australia’s non-refoulement obligations in respect of AJL20 be treated as irrelevant for the purpose of his removal and deportation from Australia as soon as reasonably practicable in accordance with s 198. Bromberg J concluded that AJL20 has, since 26 July 2019, been unlawfully detained and ordered him to be released immediately.
The Court said that s 196 does not authorise the ongoing detention of AJL20 when the removal and deportation from Australia purpose of his detention is no longer being carried out as soon as reasonably practicable. AJL20’s detention had to be brought to an end by his removal and deportation from Australia as soon as reasonably practicable otherwise his detention would be unlawful.
The Court also said that a “residence determination” made by the Minister under s 197AB which involves a non-citizen residing outside of a detention centre is another available temporary disposition. The Migration Act recognises that the powers to detain an unlawful non-citizen may not be lawfully exercised and that unlawful detention will be the subject of court orders (e.g. habeas corpus is available to every individual detained in Australia without legal justification) including unlawful non-citizen be released from detention (s 196(4)-(5)). Under s 195A the Minister may, if it is in the public interest, to grant a visa to a person in detention.
In summary, if you are detained because your visa has been cancelled or your visa has expired, your detention would only have been lawful while steps were being taken to arrange for your removal and deportation as soon as reasonably practicable from Australia to your home country (Plaintiff M76/2013 v MIBP (2013) 251 CLR 322). Your detention must be fixed by reference to what is both necessary and incidental to the execution of s 198 power to detain and the fulfilment of its purpose. It is incorrect to read s 196(1) as allowing your detention “until” the fact or the event of your removal from Australia. Section 196(1) provides that an unlawful non-citizen must be kept in immigration detention until the happening of 1 of the 4 events listed in s 196(1). Immigration detention is only lawful for the removal (a permissible purpose) from Australia of an unlawful non-citizen. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether 1 or other of the events specified in s 196(1) has in fact occurred. This is because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose. The motives or intentions of the Minister, or the officers are not relevant (ALJ20 at ). The purpose for the detention had to be carried out as soon as reasonably practicable, or the permissible purpose of the detention had to be undertaken and completed as soon as reasonably practicable (ALJ20 at ). Failure to take steps or sufficient steps to pursue the removal of detained unlawful non-citizen from Australia marked the departure of the permissible purpose from their detention.
The words “as soon as reasonably practical” in s 198 are intended to ensure that all reasonable means are employed to remove unlawful non-citizen, and not to define a period or event beyond which detention should be deemed to be unlawful (Al-Kateb v Godwin (2004) 219 CLR 562 at ). The Court said that it is the existence or absence of a purpose and not whether or not the purpose has been achieved (AJL20 at ). Furthermore, the removal from Australia is not country-specific (AJL20 at ; Al-Kateb at ).
If your detention is unlawful, the Department cannot detain you again as s 189 cannot cause you to be immediately re-detent (ALJ20 at ; Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 at  – ).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to prevent removal and deportation from Australia or click here to find a visa to suit your circumstances.
041 222 4020 or WeChat: AUDvisa
This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.