This Act provides the legal framework for the detention of unlawful non-citizens who arrive in Australia without proper authorisation or who have cancelled visas. Australia is a diverse country that welcomes migrants from all around the world. However, the government is taking a tough stance on illegal immigration, resulting in the detention of unlawful non-citizens.
Under the Migration Act 1958, the detention of unlawful non-citizens in Australia is legal. This means that the Australian government can detain unlawful non-citizens. This article will discuss Sections 188 to 191 of the Migration Act 1958.
The Purpose of Detention of Unlawful Non-Citizens
The immigration detention promotes the integrity of Australia’s migration program and is a component of effective border control. Australia welcomes immigrants and visitors, but they must enter the country legally and follow the terms of their visa.
On top of that, detention also manages the risk of non-citizens absconding or committing crimes in Australia. The Migration Act 1958 provides that authorities must use detention as a last resort and for the shortest practicable time. However, there have been instances where non-citizens have faced detention for long periods, sometimes for years.
Section 188: Evidence of Being a Lawful Non-Citizen
This Section discusses the evidentiary requirements that a non-citizen must satisfy to prove that they are lawful non-citizens. It stipulates that an authorised officer or a member of the Australian Defence Force may require evidence from a person whom the officer knows or reasonably suspects as a non-citizen to:
- Present evidence of being a lawful non-citizen to the officer; or
- Present evidence of the person’s identity to the officer.
Additionally, the person must comply with the obligation within the officer’s indicated time frame, which may be the prescribed time frame or any additional time the officer permits.
Different durations and the circumstances under which a specific mandated term is to apply—for example, whether the requirement is oral or written—may be prescribed by regulations that specify a period for compliance.
Section 189: Detention of Unlawful Non-Citizens
This Section outlines the various rules for an officer to detain unlawful non-citizens.
- An officer must hold a person in the migratory zone (other than an excised offshore site) if the officer knows or has a good reason to believe that the individual is an unlawful non-citizen.
- An officer could detain a person if they reasonably suspect that the individual is trying to enter the migration zone from Australia (other than from an excised offshore site) and would be an unlawful non-citizen if they did.
- An officer must hold a person if the officer knows or has a good reason to believe that the person is an illegal alien and is present in an excised offshore place.
- An officer may detain a person in a protected area if the officer knows or has a reasonable basis to believe that the individual is a citizen of Papua New Guinea who is also an illegal non-citizen.
- An officer might detain a person if the officer reasonably suspects that the individual is attempting to access an excised offshore location from Australia but is not within the migratory zone and would be an unlawful non-citizen if they were there.
Section 190: Non-compliance with Immigration Clearance or Requirement to Provide Personal Identifier
The Section 190 provides that an officer has a good reason to think that a person in Australia is an illegal non-citizen if, but not only if, the officer knows or has a good reason to believe that:
- The person was required to present evidence of identity under Section 166 of the Act.
- The person did any of the following acts:
- bypassed, attempted to bypass, or appeared to attempt to bypass, immigration clearance; or
- went to a clearance authority but was not able to present, or otherwise did not present, evidence required by Section 166.
- The person fails to provide a personal identifier required under Section 257A.
Section 191: End of Certain Detention
This Section sets out the rules for releasing a detained person concerning Section 190. The person may be released if:
- They provide evidence of their identity and Australian citizenship.
- The officer knows or reasonably believes that the detained person is an Australian citizen.
- There was compliance with Section 166 of the Act by:
- Presenting evidence of being a lawful non-citizen to a clearance officer; or
- Presenting a valid visa.
- They provide one or more personal identifiers to the clearance officer, and the evidence convinces the officer that the person is not an unlawful non-citizen.
- The officer knows that the non-citizen’s visa cannot be cancelled under Division 3 on the Registration of Migrant Agents or Sections 501, 501A, or 501BA of the Act.
The Process of the Detention of Unlawful Non-Citizens
When an individual is under detention according to the Migration Act 1958, they will stay in a detention centre while the proceedings are pending. The conditions in these centres have been the subject of much criticism, with many detainees reporting overcrowding, poor sanitation, and inadequate medical care.
Detainees are often held for long periods of time, with some spending years in detention while their cases are processed. During this time, they are not allowed to work and have limited access to education and other resources.
How a Lawyer Can Help
A lawyer can assist in several ways regarding the detention of unlawful non-citizens. Here are some of the ways:
- Provide Legal Advice. A lawyer can advise detainees regarding their rights and obligations under the Migration Act 1958. They can also advise on the prospects of challenging the detention or seeking release.
- Represent the Detainee. A lawyer can represent the detainee in any legal proceedings relating to their detention or removal from Australia. This includes appearing in court and making submissions on behalf of the detainee.
- Liaise with Immigration Authorities. A lawyer can liaise with immigration authorities on behalf of the detainee and seek to resolve any issues or concerns regarding their detention or removal.
Seeking Legal Advice from JB Solicitors
The detention of unlawful non-citizens is a serious matter, and it is important to understand the legal implications of detention under the Migration Act 1958. JB Solicitors has competent migration attorneys who can assist in such situations, and detainees must seek legal representation as soon as possible.
Contact us now.
