Unlawful non-citizen
Statutory definition
Section 14(1) of the Migration Act 1958 (Cth) provides: A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
The definition is residual — any non-citizen in the migration zone who does not hold a visa in effect is, by operation of law, an unlawful non-citizen.
Explanation
An unlawful non-citizen is a non-citizen present in Australia without a visa in effect. The status is objective — it does not require a finding of wrongdoing and is not contingent on how or why the visa ceased to be in effect.
Common ways a person becomes an unlawful non-citizen:
- Entry into Australia without a visa (for example, as an unauthorised maritime arrival)
- A temporary visa expires and no further visa is held
- A visa is cancelled under s 109 (incorrect information) or s 116 (general cancellation grounds)
- A bridging visa expires without a new substantive application being lodged
The consequences of being an unlawful non-citizen are severe:
- Mandatory detention — under s 189, an officer who knows or reasonably suspects a person is an unlawful non-citizen in the migration zone must detain that person. There is no discretion.
- Removal — under s 198, an unlawful non-citizen in detention must be removed from Australia as soon as reasonably practicable.
- Restricted visa access — many onshore visa applications require the applicant to be a lawful non-citizen at time of lodgement; an unlawful non-citizen may be barred by Schedule 3 criteria.
Unlawful non-citizen status is resolved by either: (a) the grant of a visa (making the person a lawful non-citizen), or (b) departure from Australia.
How this term is used
The concept of "unlawful non-citizen" is central to Australia's mandatory detention regime. In Al-Kateb v Godwin (2004) 219 CLR 562, the High Court held that the Act required the indefinite detention of an unlawful non-citizen where removal was not reasonably practicable — a position that has been subject to ongoing legislative and judicial development.
The term is used in ss 189, 196, 198, and 199 to define the class of persons subject to detention and removal obligations. It is also used in ss 501–501CA (character cancellation and bar provisions) to establish that a person whose visa has been cancelled becomes an unlawful non-citizen if they do not hold another visa.
The term does not imply criminal liability. Being an unlawful non-citizen is a civil, not criminal, status. However, entering Australia without a visa (as an unauthorised maritime arrival or unauthorised air arrival) may also constitute a criminal offence under the Act.