Immigration Detention
Immigration detention generally occurs when a person is within Australia but does not hold a valid visa. Under Australian migration law, a non-citizen without a valid visa is treated as an unlawful non-citizen and may be taken into immigration detention by the Australian Border Force. Common situations include a visa that has expired, a visa that has been cancelled, or arriving in Australia without a valid visa.
Immigration detention often has a direct impact on a person’s living situation, work, family connections and future visa options. Where detention arises in the context of a visa cancellation, character issues, a protection visa, a bridging visa or removal arrangements, the timeframes involved are usually very tight. NS Legal can help clients and their families assess the current reason for detention, the available visa pathways, any review or court proceedings, and whether there is any possibility of applying for release or other interim arrangements.
Why might someone be placed in immigration detention?
Being in Australia without a valid visa is the most common reason for immigration detention. A visa may have expired, or it may have been cancelled because of a breach of visa conditions, character issues, the provision of incorrect information, or other reasons. Some people may also be detained because they do not hold valid travel or entry documents.
Immigration detention is generally administered by the Department of Home Affairs and the Australian Border Force. Places of detention may include immigration detention centres, immigration transit accommodation, or, in particular circumstances, alternative places of detention such as a hospital, hotel or other arrangement. People in detention may also be moved between facilities.
For family members, the first things to confirm are: the reason for the detention, whether there is currently a valid visa application or review still on foot, whether removal arrangements are already in place, and whether there is a visa or legal pathway that can be acted on immediately.
What happens during immigration detention?
Immigration detention generally continues until a person’s immigration status has been dealt with. The government may be assessing whether to allow a visa application to be made, determining a visa application that has already been lodged, or arranging for the person to leave Australia. Detention by the government must be connected to one of these immigration purposes, such as organising removal, processing a visa application, or deciding whether to allow a visa application to be made.
While in detention, an applicant may still be entitled to obtain legal advice, contact family members or a lawyer, and, depending on the circumstances, apply for a visa, administrative review or relief from a court. Some cases may also involve a Bridging Visa E, community detention, a protection visa, review of a visa cancellation, ministerial intervention or judicial review.
Timeframes during detention can change very quickly, particularly in cases where there is already a risk of removal. Family members or the person concerned should confirm as early as possible whether a cancellation decision has been received, and whether there are any review deadlines, court deadlines or removal notices.
A relative or friend in immigration detention and need to understand the options quickly?
When might release be possible?
Release from immigration detention generally requires a lawful status arrangement, such as the grant of a visa, the grant of a bridging visa, or placement into an alternative arrangement such as community detention. Whether release is possible depends on the nature of the case, the visa history, character risk, health, family connections, whether there is an undecided application or review on foot, and the Department’s assessment of the risk of absconding or of risk to the community.
In some cases, where an applicant still has an available visa pathway, it may be necessary to prepare a bridging visa or substantive visa application as quickly as possible. In cases involving a visa cancellation, it may be necessary to deal with a review or revocation request at the same time. In cases involving protection risks, it is necessary to assess whether a protection visa, ministerial intervention or another legal pathway can still be pursued.
In cases involving minor children, serious health problems, mental health risks or long-term family care responsibilities, supporting materials of this kind may also affect the detention arrangements or the strategy for any subsequent application.
What issues need to be dealt with quickly after detention?
Immigration detention cases generally require the current procedural status to be clarified first. Detention arising in different contexts may call for completely different pathways.
Matters that commonly need to be confirmed quickly include:
- whether any valid visa is still held, or whether the person has already become an unlawful non-citizen;
- whether a visa has been cancelled, and whether the cancellation was made under section 116, section 501, or another legal pathway;
- whether the time limit for administrative review or a court application is still open;
- whether there is a bridging visa, protection visa, revocation request or other substantive visa that can be applied for;
- whether any removal arrangements, flight notice or other forced-departure documents have already been received;
- whether there are health, family, child or protection risks for which supporting materials need to be submitted quickly.
These matters usually need to be dealt with within a very short timeframe. Particularly where a visa has already been cancelled or removal arrangements are being progressed, early legal assessment has a direct impact on the options that follow.
How NS Legal Can Help
NS Legal can help people in immigration detention and their families assess the reason for detention, the visa status, review deadlines, court deadlines and the available visa pathways. We can assist with a Bridging Visa E, review of a visa cancellation, revocation requests, protection visas, ministerial intervention, judicial review and other urgent migration matters connected to detention.
Detention situations are often time-critical, so the earlier the assessment, the better.
Frequently Asked Questions
When can someone be placed in immigration detention?
Common situations include a visa that has expired, a visa that has been cancelled, entering Australia without a valid visa, or having already become an unlawful non-citizen. Detention generally occurs where the Department of Home Affairs or the Australian Border Force needs to deal with visa status, a review, removal or other migration arrangements.
How long does immigration detention last?
Australian migration law does not set a fixed, general period of detention. The length of detention depends on the nature of the case, any visa or review proceedings, whether there are removal arrangements, health or identity issues, and whether there is any arrangement that would allow release into the community. In recent years the High Court of Australia has also confirmed that indefinite detention may give rise to legal issues where there is no real prospect of removal in the foreseeable future.
Can a visa still be applied for after detention?
It depends on the circumstances. Some people may still have a bridging visa, protection visa or other visa pathway available; others may be affected by visa application bars, character issues or a previous cancellation decision. The current visa status and any applicable bars need to be reviewed first.
Can family members help to contact a lawyer?
Yes. People in detention can generally contact family members or a lawyer by telephone. Family members can also help to gather visa documents, the cancellation decision, court materials, medical materials and other supporting evidence so that the next step can be assessed as quickly as possible.
Is release from immigration detention possible?
It is possible. Release generally requires a valid visa, a bridging visa, community detention or another lawful arrangement. Whether it is feasible depends on the risk in the case, the visa history, health and family circumstances, and whether there is an undecided application or review on foot.
A removal notice has already been received — is there still time to act?
An immediate assessment is needed. Removal arrangements can move very quickly, and whether there is still a legal pathway depends on the background of the case, any earlier decisions, review or court deadlines, and whether there are protection, health, family or procedural issues.
A relative or friend in immigration detention? Contact NS Legal
We provide clear, practical legal advice to people in detention and their families, helping you make decisions quickly when the situation is urgent.
