Lawful non-citizen

A lawful non-citizen is a non-citizen who has valid permission — in the form of a visa — to be in the migration zone. The status depends entirely on whether the visa is "in effect" at the relevant time.

A visa is in effect when it has been granted and has not been cancelled, has not expired (for temporary visas), and the holder has not departed Australia in a way that caused it to cease (subject to travel conditions).

The significance of being a lawful non-citizen is substantial:

• A lawful non-citizen is not subject to mandatory detention under s 189 of the Act
• A lawful non-citizen may remain in Australia (subject to visa conditions)
• A lawful non-citizen may apply for further visas from within Australia (subject to eligibility criteria)
• A lawful non-citizen is entitled to certain procedural protections before visa cancellation takes effect

A bridging visa is the mechanism used to maintain lawful non-citizen status when a substantive visa has expired but a new application is pending.

The term appears throughout the Act wherever a distinction must be drawn between persons with lawful permission to be in Australia and those without. For example:

• s 189 — an officer must detain an unlawful non-citizen; there is no equivalent duty in respect of lawful non-citizens
• s 198 — an unlawful non-citizen may be removed; a lawful non-citizen may not be removed (though the visa may be cancelled first)
• Visa applications — many visa subclasses require the applicant to be a lawful non-citizen at the time of application (the "Schedule 3" criterion)

A person's status as a lawful non-citizen can change instantaneously — for example, if a visa is cancelled with immediate effect, the person becomes an unlawful non-citizen at the moment of cancellation. Conversely, the grant of a bridging visa restores lawful non-citizen status immediately.