Immigration Detention
Immigration detention generally arises when a person is in Australia without 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 an expired visa, a cancelled visa, or arriving in Australia without a valid visa.
Immigration detention often has a direct impact on a person’s residence, 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, time frames are usually very tight. NS Legal can assist clients and their families to assess the current reason for detention, the available visa pathways, review or court proceedings, and whether there is any possibility of applying for release or other interim arrangements.
Why does immigration detention happen?
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 hold no valid travel or entry documents.
Immigration detention is generally administered by the Department of Home Affairs and the Australian Border Force. Detention may take place in an immigration detention centre, an immigration transit accommodation facility, or, in certain circumstances, an alternative place of detention such as a hospital, hotel or other arrangement. People in detention may also be transferred between facilities.
For families, the first things to confirm are: the reason for the detention, whether there is still a valid visa application or review process 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 usually continues until a person’s immigration status is resolved. The government may be assessing whether to allow a visa application to be made, deciding a visa application that has already been lodged, or arranging for the person to leave Australia. Detention must be connected to these migration purposes — for example, organising removal, processing a visa application, or deciding whether a visa application can be made.
While in detention, a person may still be entitled to obtain legal advice, contact family 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 (BVE), community detention, a protection visa, review of a visa cancellation, ministerial intervention or judicial review.
Time frames during detention can change very quickly, especially in cases where there is already a risk of removal. Families or the person concerned should confirm as early as possible whether a cancellation decision, a review deadline, a court deadline or a removal notice has been received.
Has a loved one been taken into immigration detention? Need to understand the available visa and legal pathways quickly?
When is release possible?
Release from immigration detention generally requires a lawful status arrangement — for example, a visa being granted, a bridging visa being granted, or being placed into an alternative arrangement such as community detention. Whether release is possible depends on the nature of the case, visa history, character risk, health, family connections, whether there are any pending applications or review proceedings, and the Department’s assessment of any risk of absconding or risk to the community.
In some cases, where a person still has an available visa pathway, it may be necessary to prepare a bridging visa or substantive visa application as soon as possible. In cases involving a visa cancellation, a review or revocation application may need to be dealt with at the same time. In cases involving protection risk, 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 concerns, mental health risks or long-term family care responsibilities, the supporting material may also affect the detention arrangements or the strategy for any subsequent application.
What needs to be dealt with quickly after detention?
Immigration detention cases usually require the current procedural position to be clarified first. Detention arising in different circumstances can call for entirely different approaches.
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 the visa has been cancelled, and whether the cancellation was made under section 116, section 501 or another legal provision;
- whether the case is still within the time limit for administrative review or a court application;
- whether there is a bridging visa, protection visa, revocation application or other substantive visa that can be applied for;
- whether removal arrangements, a flight notification or other documents relating to enforced departure have already been received;
- whether there are any health, family, children or protection risks for which supporting material needs to be lodged quickly.
These matters usually need to be dealt with within a very short time. Particularly where a visa has already been cancelled or removal arrangements are progressing, early legal assessment has a direct impact on the options that follow.
How NS Legal Can Help
NS Legal can assist people in immigration detention and their families to assess the reason for detention, visa status, review deadlines, court deadlines and the available visa pathways. We can assist with a Bridging Visa E (BVE), review of a visa cancellation, revocation applications, protection visas, ministerial intervention, judicial review and other urgent migration matters connected with detention.
When a loved one is in immigration detention, time is usually short — the earlier the matter is assessed, the better.
Frequently Asked Questions
In what situations can a person be taken into immigration detention?
Common situations include an expired visa, a cancelled visa, arriving without a valid visa, or having already become an unlawful non-citizen. Detention generally occurs when the Department of Home Affairs or the Australian Border Force needs to deal with a person’s visa status, a review, removal or another migration arrangement.
How long does immigration detention last?
Australian migration law does not set a fixed standard period of detention. How long detention lasts depends on the nature of the case, the visa or review process, whether removal arrangements are in place, health or identity issues, and whether there is an arrangement that allows release into the community. In recent years the High Court of Australia has also confirmed that indefinite detention may raise legal issues where there is no real prospect of removal in the reasonably foreseeable future.
Can a person still apply for a visa after being detained?
It depends on the circumstances. Some people may still have a bridging visa, protection visa or other visa pathway; others may be affected by a bar on making a visa application, character issues or a previous cancellation decision. The current visa status and any applicable bars need to be reviewed first.
Can family members help arrange a lawyer?
Yes. People in detention can usually contact family or a lawyer by telephone. Family members can also help gather visa documents, cancellation decisions, court materials, medical records and other supporting evidence, so that the next steps can be assessed as soon as possible.
Can a person be released after going into immigration detention?
It is possible. Release usually requires a valid visa, a bridging visa, community detention or another lawful arrangement. Whether it is achievable depends on the risk in the case, visa history, health and family circumstances, and whether there are any pending applications or review proceedings.
A removal notice has already been received — is there still time to act?
This needs to be assessed immediately. Removal arrangements can progress very quickly. Whether there is still a legal pathway depends on the background of the case, earlier decisions, review or court deadlines, and whether there are any protection, health, family or procedural issues.
A loved one in immigration detention? Contact NS Legal
We provide people in detention and their families with clear, practical legal advice, helping you make sounder decisions as quickly as possible in an urgent situation.
