Wondering what immigration detention is like for non-citizens in Australia? If you want to know more about it, this article might help you.
Under section 176 of the Migration Act 1958, the Parliament considers that it is in the national interest that each non-citizen who is a designated person should be kept in immigration detention until he or she leaves Australia or is given a visa. Only if they are given a visa or are expelled from Australia may these individuals be released from detention.
The Australian Human Rights Commission (AHRC) reported that there were 1061 individuals in immigration detention centres as of January 31, 2023. After receiving approval for residency determination, an additional 516 individuals, 146 of whom are children, were residing in the neighbourhood. Moreover, 10,728 Unauthorised Maritime Arrivals among whom 1334 were children were awarded a Bridging Visa E and were residing in the community.
A significant number of non-citizens are held in Australia’s highest-security non-citizen detention centers, or IDCs. As of January this year, these are the IDCs where non-citizens are staying:
- Villawood IDC (NSW)
- Yongah Hill IDC (WA)
- Perth IDC (WA)
- North West Point IDC (WA).
However, there are also alternative places of detention (APODs) where the detainees are held. These include establishments like hotels, hospitals, and correctional facilities. In most cases, APODs lack the facilities necessary for long-term incarceration and are only meant for brief stays.
This article will now discuss the legal conditions and implications of the detention of non-citizens in immigration centres under sections 177 to 181 of the Migration Act 1958.
Who Is a Designated Person? (Section 177)
A designated person is a non-citizen who:
- has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and
- has not presented a visa; and
- is in the migration zone; and
- has not been granted a visa; and
- is a person to whom the Department has given a designation by:
- determining and recording which boat he or she was on; and
- giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;
- is a non-citizen born in Australia whose mother is a designated person.
When May a Designated Persons Released? (Section 178)
As a rule, a designated person must be kept in immigration detention. However, there are two instances when a designated person may be released from detention:
Also, the application of this rule is subject to section 182 which provides the rules when there should be no detention or removal after a certain period. In order to prevent confusion and in violation of section 182, the individual must remain in immigration custody until they are removed from Australia.
When Does the Detention Commence? (Section 179)
Under section 179, there are two indicators when the detention of a designated person commences:
- If, immediately after commencement, a designated person is in a place, including
- immigration detention facilities,
- airports, and
- seaports, or
- a processing area,
he or she then begins to be in detention for the purposes of section 178.
- If, immediately after commencement, a designated person is in the company of, and restrained by, immigration officers and police officers, the designated person then begins to be in detention for the purposes of section 178.
Detention of Designated Person (Section 180)
This section allows detention without a warrant and the application of reasonable measures to place the designated person in the detention centre. It provides that an officer may detain a specified person, immediately after commencement, without the need for a warrant if:
- They are not in immigration detention.
- They escape from the immigration detention.
They may also take reasonable measures to guarantee that the person remains in immigration detention for the purposes of section 178.
Removal From Australia of Designated Persons (Section 181)
What instances should warrant the removal of these designated persons from Australia? Section 181 answers that an officer must remove a designated person from Australia as soon as practicable if:
- The designated person asks the Minister, in writing, to be removed;
- The person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period;
- There has not been an entry application for the person;
- There has been an entry application for the person, the grant of the visa has been refused, and all appeals against, or reviews of, the refusal (if any) have been finalised.
Aside from the above-mentioned situations, there are also other instances of removal. If the designated person:
- Is the only parent in Australia of another designated person in Australia who is under 18,
- Has the care and control of another designated person in Australia who is under 18 and does not have a parent who is a designated person,
the other designated person is also liable for removal from Australia under this section.
The Psychological and Emotional Impact
The psychological and emotional impact of immigration detention on non-citizen detainees in Australia is a significant concern. Studies have consistently reported that non-citizens held in the detention centres have high rates of mental distress.
The impact of detention on mental health is particularly severe for children, who are exposed to multiple and cumulative risks with substantial negative effects on health, development, and family functioning. The severity of distress is significantly greater in those who have been detained for a relatively long period.
Consult a Migration Lawyer
The Australian immigration system can be complex and confusing, especially for non-citizens. That’s why it’s important to hire an experienced migration lawyer from JB Solicitors to help you navigate the process.
Here are some of the benefits of hiring a migration lawyer in Australia for non-citizens:
- We can help you understand the Australian immigration system and your options.
- We can help you prepare all the necessary paperwork and documentation.
- We can represent you at all stages of the immigration process, from applying for a visa to appealing a decision.
- We can help you understand your rights and options under the law.
- We can protect your interests and ensure that you are treated fairly.
We will work with you to understand your goals and create a customised immigration strategy. We will also represent you at all stages of the immigration process, from applying for a visa to appealing a decision.
Contact us today to learn more about how we can help you achieve your plans.
