This article will outline points in relation to immigration status and unlawful non-citizens as mentioned in the Migration Act 1958. The Migration Act is the Australian legislation that governs the entry and exit of people into and out of Australia. This Act also provides the legal framework for the administration of Australian immigration. This includes the:
- Granting of visas;
- Regulation of immigration agents and;
- Management of refugee and humanitarian programs.
The Migration Act establishes the criteria for entry and residence in Australia which contains grounds for granting or refusing visas. It also provides for the detention and deportation of unlawful non-citizens and sets out the procedures for appealing against visa decisions. Read on to know more about immigration status and unlawful non-citizens.
Section 13 and 14: Lawful Citizens vs Unlawful Citizens
Let’s discuss the “migration zone” before we differentiate lawful citizens from unlawful citizens. The migration zone is the area that consists of Australian states, territories, Australian resource and sea installations. This may include:
- Land that is part of a state or territory at mean low water
- Sea within the limits of both a state or territory and a port
- Piers, similar structures, and any part which is connected to such land or to ground under such sea. However this must not include sea within limits of a state or territory but not in a port.
Let’s now differentiate lawful citizens from unlawful citizens using the table below.
Lawful citizens | Unlawful citizens |
According to Section 13 of immigration status and unlawful non-citizens Migration Act, a non-citizen in the migration zone who holds a visa is considered a lawful citizen. Papua New Guinea citizens or traditional inhabitants are also considered as lawful citizens as long as they are in the protected area. This is an area that is: – Part of the migration zone – In or in an area in the vicinity of the Protected Zone. The term “Protected Zone” refers to the area bounded by the line described in Annex 9 to the Torres Strait Treaty. This is defined in Article 10 of that treaty. | According to Section 14, a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. A non-citizen in the migration zone who was an illegal entrant under the Migration Act before it was enforced, became an unlawful non-citizen on that date (immediately before 1 September 1994). |
Immigration Status and Unlawful Non-citizens: Additional Information
1. Section 15
According to Section 15, the former holder, if in the migration zone, becomes an illegal non-citizen on the cancellation date, unless the former holder immediately holds another valid visa.
A visa can be cancelled on various grounds, including a change in the visa holder’s circumstances or a breach of visa conditions. The cancellation of a visa can have serious consequences, including detention and removal from Australia.
2. Section 16
According to Section 16, the Minister may declare in writing that it is undesirable for a specific Protected Zone inhabitant to be permitted to enter or remain in Australia.
3. Section 17
Section 17 outlines pre-cleared flights in Australia. The Minister may declare in writing, a flight to have pre-clearance when flying between a specified foreign country and Australia.
The written declaration regarding pre-cleared flights also applies to specified flights that are operated by air transport enterprises or other specified people.
Note: A specific flight is not a pre-cleared flight if an authorised officer determines that it is inappropriate to treat it as such before the passengers on it disembark in Australia.
Section 18: Information and Documents on Unlawful Non-citizens
Section 18 of immigration status and unlawful non-citizens Migration Act outlines information and documents on unlawful non-citizens. A Minister may order a person to provide information and documents about an unlawful citizen. This is for the purposes of determining the identity or whereabouts of unlawful citizens.
This notice must set out the effect of Section 21 of the Act and sections 137.1 and 137.2 of the Criminal Code. The regulations may establish expense scales for persons required to provide information or produce documents under this Division.
This is mentioned in Section 19 of the Migration Act. According to Section 20, the Commonwealth will provide reasonable compensation for a person who provides information and documents on unlawful non-citizens.
Section 21: Failure to provide Information and Documents on Unlawful Non-citizens
It’s also important to discuss the consequences of failure to provide information and documentation on unlawful citizens. The penalty for this non-compliance is imprisonment for 6 months.
Section 21 of immigration status and unlawful non-citizens Migration Act does not apply if the ordered person:
- Is not capable of complying with the notice
- Has a reasonable excuse for the non-compliance
Here are two reasonable excuses for non-compliance:
- The person whom the Minister believed to be an unlawful non-citizen was not an unlawful non-citizen
- The information and documents relating to the unlawful non-citizen is not relevant to determine the identity and whereabouts of the alleged unlawful non-citizen.
Let’s use an example. For instance, Bob was ordered by the Minister to provide information on the whereabouts of an alleged unlawful citizen. This is because the alleged unlawful citizen is his brother who is residing in the Philippines.
However, Bob has been living with his brother for almost 3 years now in Sydney. Both Bob and his brother even registered their visas together. Bob has a reasonable excuse for non-compliance since he was able to prove that his brother is not an unlawful non-citizen.
Section 24: Information and Documents That Incriminate a Person
Section 24 of the immigration status and unlawful non-citizens Migration Act state that a person is not excused from providing information or documents if this will incriminate the person. ‘Incriminate’ is the term used to make someone appear guilty of a crime. However, the following instances are not admissible as evidence against the person in any criminal proceedings:
- Giving information or producing the document or copy
- Any information, document, or thing obtained directly or indirectly as a result of providing the information or creating the document or copy;
These instances above are not admissible as evidence used against a person other than a prosecution for and offence:
- Against or arising out of Migration Act Division 2
- Against Section 137.1 or 137.2 of the Criminal Code
Section 25 and 26: Copies and Retainment of Documents
According to Section 25 of the immigration status and unlawful non-citizens Migration Act, the Minister may:
- Inspect a document or copy produced under this Division and make and keep copies of it.
- Take and keep extracts from the document
- Keep a copy of a document produced in accordance with Section 18.
According to Section 26, the Minister:
- May take and retain the possession of a document for as long as necessary
- Should provide a person who is entitled to possess the document a true copy as soon as possible
- Must provide courts with the certified copy of the document and tribunals as evidence
- Must permit the person entitled to possess the document to inspect, make copies of, and take extracts from the document. The Minister will only allow this at times and places deemed appropriate by the Minister.
Section 27: Division Binds the Crown
According to Section 27 of immigration status and unlawful non-citizens Migration Act, this Division binds the crown in right of the Commonwealth of:
- Each states
- The Australian Capital Territory (ACT)
- The Northern Territory (NT)
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions. This includes the Crown Dependencies, overseas territories, provinces, or states.
Nothing in this Division allows an offence to be prosecuted against the Crown in right of the Commonwealth, a State, the Australian Capital Territory, or the Northern Territory.

Importance of Seeking Legal Advice
JB Solicitors is an immigration law firm that aids clients who want to immigrate safely and legally in Australia. Clients may seek legal advice from one of our experienced lawyers if they need further information. We can also provide advice for clients who need legal representation should they be accused of being an unlawful non-citizen.
Contact us today for more information about immigration status and unlawful non-citizens