Migration Act: Detention of Visa Holders

Please note that the information we provide in this article is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

Is the detention of visa holders possible?

Australia’s mandatory detention policy states that anyone without a valid visa must be detained, regardless of their circumstances. This includes:

• unauthorised arrivals (arriving without a visa) and 
• authorised arrivals (entering with a visa that later becomes invalid).

To know more, here’s an article tackling sections 192 to 195 of the Migration Act 1958. These sections pertain to the following topics:

1. Detention of visa holders whose visas liable to cancellation
2. Application of law to certain non-citizens while they remain in immigration detention  
3. Detainee to be aware of consequences of detention  
4. Detainee may apply for visa  

Detention of Visa Holders Whose Visas Liable to Cancellation

Section 192 sets the rule on the detention of visa holders whose visas are liable to cancellation. It states that if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under the:

• Subdivision C, D, FA or G of Division 3 or 
• Section 501, 501A or 501BA, the officer may detain the non-citizen.

Here, an officer must not detain an immigration-cleared non-citizen unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

• attempt to evade the officer and other officers; or
• otherwise not cooperate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa.

Detention of Visa Holders: Questioning by the Officer

An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa. However, a non-citizen so detained must be released from questioning detention if the officer becomes aware that the non-citizen’s visa is not one that may be cancelled.

Further, a detained non-citizen must be released from detention within 4 hours after being detained, unless the non-citizen is:

• detained under s189 (detention of unlawful non-citizens) 
• because of non-compliance with immigration clearance or the requirement to provide personal identifier [s190(2)].

Moreover, if the non-citizen has been detained more than once in any period of 48 hours, the 4 hours is reduced by so much of the earlier period of detention as occurred within that 48 hours. 

Thus, in finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

1. if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;
2. any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee’s behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;
3. any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;
4. any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;
5. any time during which the questioning is suspended or delayed because of the detainee’s intoxication;
6. any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

Detention of Visa Holders: Non-Citizens While They Remain in Immigration Detention

Section 193 states that the provisions on “detainee to be told of consequences of detention” (s194) and “detainee may apply for visa” (s195) is inapplicable to a person who is detained under the following sections:

1. Section 189(1):
   • on being refused immigration clearance; or
   • after bypassing immigration clearance; or
   • after being prevented from leaving a vessel under section 249; or
   • because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or
   • the person has entered Australia after 30 August 1994; and
   • the person has not been immigration cleared since last entering; or
2. Sections 189(2), (3), (3A) or (4).
3. Section 189 who:
   • held an enforcement visa that has ceased to be in effect; and
   • has not been granted a substantive visa since the enforcement visa ceased to be in effect.

Giving of Application Forms for Visa

Apart from s256 (person in immigration detention may have access to certain advice, facilities), nothing in this Act or in any other law (whether written or unwritten) requires the Minister or any officer to:

• give a person an application form for a visa; or
• advise a person as to whether the person may apply for a visa; or
• give a person any opportunity to apply for a visa; or
• allow a person access to advice (whether legal or otherwise) in connection with applications for visas.

Note that this section applies to a person referred to in the previous paragraphs for as long as the person remains in immigration detention.

Detention of Visa Holders: Notification of Detention Consequences 

Section 194 states that as soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

• the provisions of sections 195 and 196 (duration of detention); and
• if a visa held by the person has been cancelled under s137J (non-complying students)–the provisions of s137K (applying for revocation of cancellation).

Detention of Visa Holders: Detainee May Apply for Visa

Section 195 provides, however, that a detainee may apply for a visa:

• within 2 working days after the day on which s194 (notification of detention consequences) was complied with in relation to his or her detention; or
• if he or she informs an officer in writing within those 2 working days of his or her intention to so apply–within the next 5 working days after those 2 working days.

Note that a detainee who does not apply for a visa within the time allowed by law may not apply for a visa, other than a bridging visa or a protection visa, after that time.

Let a Migration Lawyer Protect You

Understanding the Australian immigration system can be a hassle. That’s why you need someone who is an expert in its intricacies and can advocate for your best interests.

Our migration lawyers at JB Solicitors can ensure that you’re treated fairly and your rights are protected under Australian law and international human rights principles.

Contact us today for more information.