Non-citizen
Statutory definition
Section 5(1) of the Migration Act 1958 (Cth) defines non-citizen as a person who is not an Australian citizen. Australian citizenship is determined under the Australian Citizenship Act 2007 (Cth), not under the Migration Act.
Explanation
The term non-citizen is the Migration Act's foundational category for all persons subject to the Act's visa and immigration control regime. Every natural person present in the migration zone who is not an Australian citizen is a non-citizen.
Non-citizens are divided into two mutually exclusive categories:
- Lawful non-citizen — a non-citizen in the migration zone who holds a visa that is in effect (s 13)
- Unlawful non-citizen — a non-citizen in the migration zone who is not a lawful non-citizen (s 14)
New Zealand citizens are non-citizens for the purposes of the Migration Act, despite the close relationship between the two countries. They are generally entitled to a Special Category Visa (SCV, Subclass 444) on arrival, which makes them lawful non-citizens, but they remain subject to the Act's visa and cancellation regime.
How this term is used
The distinction between a non-citizen and an Australian citizen is binary and fundamental to the Act's operation. An Australian citizen cannot be subject to visa cancellation, deportation, or immigration detention under the Migration Act, regardless of their conduct.
When a person acquires Australian citizenship, any visa they held as a non-citizen automatically ceases to be in effect — because there is no longer a need for a visa. Conversely, renouncing or losing Australian citizenship causes a person to become a non-citizen, requiring them to hold a visa to remain in Australia lawfully.
The concept of a non-citizen does not depend on a person's country of birth, country of origin, or visa status — it is determined solely by whether the person holds Australian citizenship at the relevant time.