Immigration, Refugees and Citizenship

Compliance

Unlawful Non-Citizens

Anyone who is not an Australian citizen and enters or remains in Australia without a valid visa is an 'unlawful non-citizen' (ss 13(1) and 14(1)).

The Department locates unlawful non-citizens through information provided by people in the community ("dob-ins"), by raiding places of employment, through data matching (checking names against records held by other government agencies) and by other means.

Unlawful non-citizens have no work or study rights and cannot access Medicare or other welfare benefits.

If detected, unlawful non-citizens are subject to mandatory detention (see The Consequences of being an Unlawful Non-Citizen). Unless they are granted another visa, they will eventually be removed or deported from Australia (see Removal and deportation). Once they have left Australia, they may be prevented from re-entering Australia for a certain period (see Re-entry bans and exclusion periods).

How People become Unlawful Non-Citizens

A person can become unlawful in a number of ways, including by:

• entering Australia without authority (for example, by-passing immigration clearance);
• overstaying their visa;
• having their visa application refused; or
• having their visa cancelled.

Each of these is discussed further immediately below.

Unauthorised entry

Generally, non-citizens must enter Australia at a port or on a pre-cleared flight and obtain 'immigration clearance' to be lawful (ss 43, 173 and 174). In order to be immigration cleared, a non-citizen must present their passport/identification documents and visa to a clearance officer (ss 166 and 172). If they enter in any unauthorised way, they have two days to obtain immigration clearance. Even where a person has a valid visa, if they enter Australia without being immigration cleared, their visa ceases to be in effect (s 173).

Overstay

Any non-citizen who remains in Australia after their temporary visa expires is an unlawful non-citizen (ss 13(1) and 14(1)). If they have not applied for another visa by midnight on the day the visa expires, they become unlawful (s 82(7)).

Visa refusal

Generally, the consequences of a visa refusal vary according to the location of the visa applicant and their visa status. Non-citizens in Australia who apply for a substantive visa are most often granted a bridging visa on application (see The role of bridging visas and Bridging Visas). If their original substantive visa expires while they are waiting for a decision, the bridging visa comes into effect. The bridging visa is valid until they are granted their next visa or up to 28 days after they are notified of refusal. If applicants do not or cannot apply for review of the refusal decision and do not leave Australia within 28 days, they will be without a valid visa and become unlawful non-citizens (ss 13(1) and 14(1)).

Visa cancellation

Non-citizens who have their visa cancelled and do not hold another valid visa automatically become unlawful (s 15). The Act contains a number of provisions which give the Minister power to cancel visas in various different circumstances. The more common circumstances leading to cancellation include situations where:

• the visa holder has breached a condition attached to their visa; or
• the grounds for holding the visa no longer exist (for example, the holder of a prospective marriage visa informs the Department they no longer intend to marry); or
• the Department discovers that the visa holder provided incorrect information or bogus documents in order to obtain their visa.

See Chapter 6 of the Department's publication, Managing the Border: Immigration Compliance at www.immi.gov.au/media/publications/compliance/managing-the-border/index.htm for a summary of the different powers and grounds for cancellation.

The Consequences of being an Unlawful Non-Citizen

Unless unlawful non-citizens are granted a visa they are subject to detention (see Immigration detention). People who are detained must then be removed from Australia as soon as reasonably practicable. Alternatively, they may face deportation (see Removal and deportation).

Depending on the way they became unlawful, unlawful non-citizens (whether they are detained or not) may also be affected by re-entry bans or exclusion periods from Australia (see Re-entry bans and exclusion periods). They are almost always limited in the types of visas for which they can apply.

Immigration detention

Where an officer 'knows or reasonably suspects' a person is an unlawful non-citizen they must detain that person (s 189). Such people must remain in detention until they are granted a visa, or they are removed or deported from Australia (s 196(1)).

In certain circumstances, officers may also detain a person whom they know or reasonably suspect should have their visa cancelled (s 192). These people are then required to provide evidence to the officers (s 192(2A)). Once the person has provided evidence to identify themselves, the officers have four hours to establish that the person's visa should be cancelled. If they cannot do this, they must release the suspect (s 192(5)).

Finally, officers are permitted to detain non-citizens whom they reasonably suspect of engaging in criminal activities such as illegal fishing in Australia's territorial waters (s 250). Suspects can be detained for the length of time it takes to prosecute them in an Australian Court and after this must be quickly removed from Australia.

A. Powers of officers

Officers have a number of powers they can exercise in relation to locating and questioning unlawful non-citizens. The definition of an "officer" is outlined in s 5 of the Act and includes officers of the Department, Federal, State and Territory policemen and customs officers among others.

Once an officer has located someone whom they suspect is unlawful or whose visa is about to be cancelled, they have the right to ask them to provide evidence that they are lawful (s 188). A person must provide this evidence (usually a passport or other identification document) within five minutes if they are asked orally and within 48 hours if requested in writing (reg 3.19). The Minister and his/her delegates can also issue a written notice to anyone they believe may have information or documents about an unlawful non-citizen (s 18).

Officers may also obtain search warrants to enter and search any building, premises, vessel (including an aeroplane), vehicle or place where they reasonably believe they can find an unlawful non-citizen or document relating to them (s 251(6)). The document must relate to the entry of a person who would become an unlawful non-citizen or to the departure from Australia of an unlawful non-citizen, removee or deportee.

The Act also provides authority to chase, board, search and detain ships and aircrafts and their passengers (all without a warrant) (Div 12A). Alternatively, officers can, with the authority of a warrant issued by the Secretary (s 251(4)), enter, search and seize goods and question people on board whom they reasonably believe may become prohibited immigrants, prohibited non citizens or illegal entrants under the Act (s 251).

Section 252 of the Act enables officers to search, without a warrant, a person who:

• has been detained; or
• has not been immigration cleared and the officer has reasonable grounds to suspect their visa should be cancelled.

This type of search can only be carried out to find out:

• whether the person is hiding a weapon capable of inflicting bodily injury or helping the person escape detention (s 252(2)(a)); or
• whether the person is hiding evidence that would provide grounds for cancelling their visa (s 252(2)(b)).

Generally, officers can only carry out strip searches without a warrant on detainees to find out whether they are hiding a weapon or anything that could help them escape detention (s 252A). This does NOT include a cavity search (s 252A(2)(b)). The rules for conducting a strip search are found in s 252B of the Act.

B. Rights and obligations of detainees

If a person is detained after they have been immigration cleared (such as when they have overstayed their visa), the Department must tell them as soon as possible about their right to apply for a visa (s 194). (For exceptions to this general rule see s 193). Detainees have two working days in which to apply for the visa running from the date they are informed they can make an application (s 195). They can obtain an extension of five days if, within the two working days, they inform a Departmental officer in writing of their intention to apply for a visa. If detainees fail to apply for a visa within the time limits, they can only apply for a protection visa or bridging visa (s 195(2)).

People who are detained because they have been refused or bypassed immigration clearance (in other words, entered Australia illegally) can only apply for bridging visas and protection visas. The Department has no obligation to inform them of their right to apply for the specific visas or to allow them access to legal advice in relation to making a visa application (s 193).

Detainees who have had their visas cancelled or refused on character grounds (under s 501 of the Act) face even more stringent limitations and, under s 501E, may only apply for protection visas or - if invited to apply - a Bridging Visa R (BVR) (see Bridging Visas F and R). They must therefore remain in immigration detention until they are granted a protection visa or BVR or are deported. As with detainees who have by-passed immigration clearance, the Department has no obligation to inform them that they can apply for a visa or to provide access to legal representation (s 193).

C. Alternatives to detention

In most circumstances, unlawful non-citizens are detained in Immigration Detention Centres (IDCs) (see s 5 of the Act). However, s 197AB of the Act gives the Minister the power to decide that a person reside in a particular place rather than be detained in an IDC. The Minister must specifically name any person covered by this type of decision (known as a "residence determination") and outline the conditions with which the person must comply. In addition, the Minister must exercise his / her power personally and cannot be forced to make this sort of decision.

In July 2008, the Minister announced seven "key immigration detention values" designed to guide the Government's detention policy, see www.immi.gov.au/managing-australias-borders/detention/about/key-values.htm. Key value number three stipulates that "Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre." Values four and five are as follows:

4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review.

5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.

In keeping with the key detention values, the Minister has used his authority under s 197AB to designate alternative places of detention for specific groups.

Immigration Residential Housing

Immigration Residential Housing (IRH) provides families and low-flight risk singles with the option of residing in housing or family-style accommodation within a community setting. The houses are located near the Sydney and Perth IDCs (see Contacts, Links and Resources for details of these IDCs) and detainees are able to cook their own food, take trips to town for recreation and shopping (under supervision of a detention officer) and visit other detainees at the nearby IDC.

Immigration Transit Accommodation

Immigration Transit Accommodation (ITA) provides hostel-style accommodation, with central dining areas and semi-independent living for short-stay low flight and security risk detainees. ITA is available in both Brisbane and Melbourne. The Government plans to open further facilities in Adelaide.

Community detention

Community detention enables unlawful non-citizens to reside and move about freely in the community without needing to be accompanied or restrained by a detention officer. People detained in the community are still unlawful non-citizens and for administrative purposes are regarded as being in "immigration detention".

While there are occasions when children are accommodated in low security facilities such as IRH and ITA, the Government's priority is to promptly accommodate children and their families in community detention. Minors in community detention have access to primary and secondary schooling as well as access to English language classes. It is also the Department's policy that adults are encouraged to undertake informal community based education.

The Department supports community detention arrangements by funding non-government organisations to source appropriate housing, provide payment of living expenses and ensure access to relevant health and community services and social support networks.

Other alternative forms of detention

The Minister can make detention arrangements to accommodate the needs of individuals where detention in IDCs or other forms of alternative detention are inappropriate. Alternative options include detention with a designated person in private houses, detention in correctional facilities, watch houses, hotels, apartments, hospitals or in foster care.

D. External scrutiny of immigration detention

Services provided for immigration detention centres are subject to parliamentary scrutiny and accountability.

The operations of immigration detention are continually subject to scrutiny from external agencies:

• the Australian Human Rights Commission (AHRC)
• the Commonwealth Ombudsman
• the United Nations High Commissioner for Refugees
• the Council for Immigration Services and Status Resolution (CISSR)

See Contacts, Links and Resources for contact details for these organisations.

See also the AHRC 2008 Immigration Detention Report and DIAC's response to that report.

Removal and deportation

The two words 'removal' and 'deportation' are sometimes used interchangeably - particularly in media reporting on immigration matters. However there is an important legal difference between them. In general terms:

• removal applies to unlawful non-citizens - in other words, individuals who do not have a valid visa;
• deportation applies to visa holders who are expelled from Australia - generally for reasons connected with law enforcement or national security.

A. Removal

Detainees must be removed from Australia as soon as reasonably practicable where:

• they have failed to make a valid application for a visa within the time limits; or
• they have made a valid application for a substantive visa and have had the application refused and exhausted all avenues of merits review; or
• they have failed to apply to the Minister to revoke the cancellation of their student visa (if entitled to do so); or
• they have failed to apply to the Minister to revoke the decision to refuse or cancel their visa on character grounds; or
• they have applied to the Minister to revoke a decision to refuse or cancel their visa on character grounds and the Minister has decided not to revoke the decision (s 198).

Detainees and other unlawful non-citizens must also be removed from Australia if they request to be removed in writing (s 198).

B. Deportation

Australian permanent residents and exempt New Zealand citizens or special category visa holders, may be deported where:

• they have committed an offence and been sentenced to at least 12 months imprisonment within 10 years of becoming a resident (s 201); or
• they have been resident in Australia for less than 10 years and constitute a threat to security (s 202); or
• they have been convicted in Australia of a serious offence (s 203).

C. Leaving Australia on removal or deportation

Normally removees and deportees are returned to their country of citizenship, although arrangements can be made for them to be removed to an acceptable third country. Where people have lost or allowed their passports to expire, the Department generally contacts the appropriate embassy or high commission to issue a travel document so that they can exit Australia.

Spouses or de facto partners of non-citizens who are removed or deported from Australia may request that they and any dependent children of the couple also be removed (ss 199 and 205). Where the removee or deportee does not have a partner but does have a dependent child, they may request that the child be removed from Australia with them.

People who are removed or deported are liable for the costs associated with their removal/deportation (s 210). If a spouse or de facto partner requests that they also be removed, they will have to pay the costs of their own removal. If the partner requests that a dependant child is removed, both the unlawful non-citizen and their spouse must pay the costs. If the unlawful non-citizen has a child but no partner, they must pay for their child's removal (s 212).

Re-entry bans and exclusion periods

Re-entry bans and periods of exclusion may apply to people who have had a visa cancelled, who have overstayed their visa in certain circumstances (even if they have left voluntarily), or who have been removed or deported from Australia.

Different exclusion periods or bans apply depending on the circumstances under which the person left Australia and the type of visa the person wishes to apply for to re-enter Australia. Most visas have special return or exclusion criteria that must be met at the time the visa is granted (these are found in Schedules 4 and 5 of the Regulations). If a person has previously become an unlawful non-citizen then they may not be able to meet the criteria for a particular visa and subsequently come back to Australia.

The following table shows when and for how long a person will be prevented from qualifying for a particular type of visa.

Circumstances under which the person left Australia	Applicable Special return and Exclusion Criteria	Length of time person is excluded from qualifying for certain visas	Visas person can qualify for within the exclusion period
Persons deported for criminal or security reasons under s 200 of the Act Visa cancelled on character grounds under ss 501, 501A and 501B of the Act because of substantial criminal record (s 501(6)(a)) or past or present criminal or general conduct (s 501(6)(c)(i) and (ii)).	5001	Forever	Protection Visa (Subclass 866) (Applicants must be onshore to qualify for this visa)
Persons removed under ss 189,199 or 205 of the Act.	5002	12 months from the date of removal	Refugee and humanitarian visas (see Refugees and Humanitarian Entrants)
Visa cancelled under ss 109, 116(1)(d) and 128 because person provided incorrect information or bogus documents to the Department. Visa otherwise cancelled under ss 116 or 128.	4013	3 years from the date the previous visa was cancelled	Generally, permanent visas or provisional visas leading to permanent residence (person cannot qualify for temporary visas)
Person left Australia as an unlawful non-citizen or holder of Bridging Visa C, D or E (this does not apply to people who left within 28 days of their substantive visa expiring or if they were granted a bridging visa in that 28 days).	4014	3 years from the date the previous visa was cancelled	Generally, permanent visas or provisional visas leading to permanent residence (person cannot qualify for temporary visas)

A. AusAID and foreign government funded students

AusAID students and other students who have been granted visas on the basis of having financial support from a foreign government are generally precluded from qualifying for another visa for two years after their course has finished. (See Schedule 5, Item 5010) If they come back to Australia within that time frame, they may be liable to repay their course fees.

B. Waiver of exclusion period

Applicants may apply for a waiver of exclusion periods unless they are subject to a permanent ban under criterion 5001 (outlined in the table above). In order to be successful, they need to show compelling circumstances affecting the interests of Australia or compassionate and compelling circumstances affecting the interests of an Australian citizen, permanent resident or ENZ citizen.

Limitations on applying for other visas in Australia

Non-citizens who are in Australia without a substantive visa face restrictions on the types of visas for which they can apply. The restrictions are imposed either by 'no further stay' conditions attached to visas or by way of s 48 of the Act. These two mechanisms, combined with the re-entry bans and exclusion periods (see Re-entry bans and exclusion periods), operate to prevent applicants who are considered a high immigration risk from remaining in or entering Australia.

A. No Further Stay

Former visa holders who had a 'no further stay' condition attached to their visa may be ineligible to apply for another substantive visa (see Visa conditions, and also see Basic Terminology for a definition of 'substantive visa'). 'No further stay' conditions continue to operate even when a visa has expired or been cancelled. The conditions are found in Schedule 8 of the Regulations and are attached to a visa when it is granted. If a visa holder finds conditions 8503, 8534, 8535 or 8540 on their visa label, they should seek advice or look up the condition in the Regulations and see which visas they can apply for once their current visa becomes invalid. Generally, people subject to 'no further stay' conditions are only able to apply for protection visas and some types of student visas.

Applicants with a 'no further stay' condition attached to their visa may apply to the Minister to have the condition waived (s 41(2A)). Applicants may convince the Minister to waive the condition if they can show there are compelling and compassionate circumstances to do so. See reg 2.05 for further information on the circumstances required for waiver.

B. Section 48 Bar

Non-citizens who have had a visa refused or cancelled and who are in Australia also face restrictions on the types of visas for which they can apply. Section 48 of the Act operates so that people who no longer hold a substantive visa and who have had a visa refused or cancelled under ss 109, 116, 134, 137J or 137Q of the Act, will generally find it exceptionally difficult to remain in Australia. The only classes of visa for which they can make a valid application are:

• Partner (Temporary) (Class UK) and Partner (Residence) (Class BS);
• Protection (Class XA);
• Medical Treatment (Visitor) (Class UB);
• Territorial Asylum (Residence) (Class BE);
• Border (Temporary) (Class TA);
• Special Category (Temporary) (Class TY);
• Bridging Classes WA - WF (that is, Bridging Visas A - F);
• Resolution of Status (Temporary) (Class UH) and Resolution of Status (Class CD); and
• Child (Residence) (Class BT).

Non-citizens facing these restrictions may leave Australia and lodge a valid application for other temporary or permanent visas from overseas in an attempt to avoid the operation of s 48. However, once a former visa holder leaves Australia they may be subject to the re-entry bans and exclusion periods discussed in Re-entry bans and exclusion periods.

People who are in detention in Australia either because they have been refused or by-passed immigration clearance or had a visa cancelled under s 501 (on character grounds) face even tougher restrictions (see Immigration detention, under "B. Rights and obligations of detainees").

How to Resolve Unlawful Status

Non-citizens who have become unlawful have limited options open to them. Ultimately they can either have their status 'regularised', that is, become lawful again, or they must leave Australia.

In some cases, it may be possible to argue that a non-citizen should not have become unlawful in the first place. This can be done by challenging decisions to refuse or cancel particular visas (see Challenging a decision to refuse a visa, and Challenging a decision to cancel a visa, respectively). Part Review discusses the procedures and time limits for review of decisions by the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT), Administrative Appeals Tribunal (AAT) and the courts.

In other cases, unlawful non-citizens might apply for and be granted a visa to remain in Australia. Of course, they are restricted in the types of visa for which they can apply (see Limitations on applying for other visas in Australia). However, if the Minister believes it is in the public interest, the Minister may grant a detainee a particular visa whether or not they have applied for it (s 195A). This public interest power is often used in the context of long-term detainees.

If either of these alternatives are not an option, unlawful non-citizens should make arrangements to leave Australia (see Voluntary departure) and perhaps apply for a bridging visa which will enable them to leave the country without being detained (see The role of bridging visas).

Challenging a decision to refuse a visa

When considering whether to grant or refuse an application for a visa, decision-makers are required to follow the "Code of Procedure" (Subdivision AB of Division 3 of Part 2 of the Act is headed "Code of Procedure for dealing fairly, efficiently and quickly with visa applications"). In particular, if decision-makers are considering refusing an application relying on information supplied by a third party (known as adverse information), they must provide the applicant with particulars of the information and invite the applicant to comment on it (s 57). However, this requirement only applies to visas that can be granted while the applicant is in Australia and if the decision to refuse to grant the visa is reviewable by the MRT or RRT.

Applicants who are deciding whether to challenge the decision to refuse their visa should check that the Department has complied with the administrative processes outlined in the Code of Procedure. One way of determining whether the Department has relied on adverse information is to lodge a Freedom of Information request (see Freedom of Information). If the Department has not complied with the proper processes, applicants may be able to mount a successful application for review.

Also, applicants should check that the factual grounds upon which the visa has been refused are correct. If the applicant believes they meet the criteria for grant of the visa and disputes the grounds for refusal, then evidence to this effect should be provided to the appropriate review body (see Review). Criteria must often be met at the time of application and at the time of decision so close attention must be paid to the time when actions and events occurred (applicants may find it helpful to maintain a chronology).

Finally, applicants should ensure the Department has properly notified them of the decision to refuse their visa application (see A. Notice of Refusal immediately below). While failure to provide notification does not make the refusal decision invalid, time limits (including time limits for lodging a review application) do not begin to run until the applicant has been properly notified of the refusal (again, see A. Notice of Refusal immediately below).

A. Notice of Refusal

Once the Department decides to refuse a visa, it must send the applicant a notice of refusal outlining:

• the criterion which the applicant failed to satisfy;
• the provision in the Act or the Regulations that prevented the grant of the visa;
• written reasons why the criterion was not satisfied (except in the case of applicants outside Australia without merits review rights); and
• details of where, when and by whom a review application can be made (if any) (s 66).

The decision-maker may provide the notice by hand, mail or electronic means (s 494B). If the notice is sent by post and the visa applicant specified an 'authorised recipient' on their application form, the notice must be sent to that address: VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003). Otherwise, the Department can send it to the last address for service or residential or business address provided (s 494B(4)(c)). If the address is in Australia, the applicant will be deemed to have received the document seven working days after the date of the document (s 494C(4)(a)).

Time limits for review commence once the applicant has received or is deemed to have received notification of their visa refusal (see Time limits for lodging applications (MRT), Time limits on applying for review (RRT) and Time limits on applying for review (AAT)). If the applicant has been granted a bridging visa in connection with the visa application, the bridging visa will expire 28 days after notification of the refusal decision (unless the applicant applies for review) (see generally The role of bridging visas and Bridging Visas).

Challenging a decision to cancel a visa

The Department may need to follow specific procedures in order to effectively cancel a visa. The circumstances that lead the Department to consider cancelling the visa and the provision of the Act they use to follow through on the cancellation decision will determine which procedures must be followed.

When deciding whether or not to challenge a decision to cancel a visa, applicants should first ensure that the Department has followed the administrative processes required for cancellation (see A. Notice of Intention to Consider Cancellation and B. Notice of Cancellation below). If the requisite administrative processes have not been complied with, the applicant may be able to successfully challenge the decision.

Secondly, applicants should carefully consider the reasons given for their visa cancellation and decide whether they believe these are correct. Applicants may provide evidence disputing the facts underlying the cancellation to the Department or relevant tribunal on review (if eligible).

Finally, some visa holders may have a right to apply to the Minister to revoke the decision to cancel their visa. Non-citizens who have had their visa cancelled before arriving in Australia or being immigration cleared (s 131); student visa holders who have had their visa cancelled for breaching their visa conditions (s 137J); and non-citizens whose visas have been cancelled by the Minister personally on character grounds (s 501(c)) may all apply to have the decision to cancel their visa revoked.

Additionally, applicants should check whether the Department is required to notify them of the decision to cancel their visa and if so, confirm that the correct procedures for notification have been followed. Although a visa is cancelled from the date of the decision to cancel, time limits for applying for review of a decision to cancel run from the date the person is properly notified of the decision. However, applicants must be aware than any bridging visa they hold at the time their substantive visa is cancelled will also be cancelled and they will become unlawful.

A. Notice of Intention to Consider Cancellation

In most cases, the Department must provide a Notice of Intention to Consider Cancellation (NOIC) to the visa holder before cancelling the visa. The Department must take into account the visa holder's response to the notice when considering whether to cancel the visa. Generally, the NOIC should:

• be in writing - unless the visa holder is in immigration detention or they have been 'detected' by the Department's compliance section; and
• provide particulars of the grounds for cancellation (in other words, specify both the provision in the Act used to cancel the visa and the facts leading to cancellation); and
• invite the visa holder to respond and to show either that the grounds do not exist or that there is a reason why the visa should not be cancelled; and
• specify how the response can be made; and
• specify the time limits for a response.

Even where grounds for cancellation exist, applicants may be able to argue that their visa should not be cancelled. Some of the cancellation powers in the Act are mandatory, that is, if certain circumstances exist, the Minister must cancel the visa. Other provisions are discretionary. If the Department informs a visa holder that they intend to cancel their visa under a discretionary cancellation power, the visa holder can appeal to the Minister to exercise his or her discretion not to cancel the visa.

B. Notice of Cancellation

If the decision-maker decides to cancel a visa after considering the visa holder's response to a NOIC, they must notify the visa holder of the decision. While each cancellation power has its own notice provisions, as a general rule, the Notice of Cancellation (NOC) must:

• be in writing;
• specify the ground or reasons for the cancellation;
• state whether the decision is reviewable; and
• if reviewable, state the procedure and time limit for the review (see for example s 127).

As with notices of refusal, the decision-maker may provide a NOC by hand, mail or electronic means (reg 2.55). If the notice is sent by post, it must be sent to the last known personal, business or post office box address known to the Department (reg 2.55(3)(c)). If the document is posted, the visa holder will be taken to have received the notice seven working days after the date of the document (whether they have actually received the document or not) (reg 2.55(7)).

Applying for other visas

In circumstances where a former visa holder is unable to successfully challenge a decision to cancel or refuse their visa, it may be possible to apply for another substantive visa so that they can remain in Australia. Unlawful non-citizens face limitations on the types of visas for which they can apply (see Limitations on applying for other visas in Australia).

Voluntary departure

A person may decide to leave voluntarily when they realise they have no realistic option of remaining lawfully in Australia. If a non-citizen chooses to leave voluntarily before becoming unlawful, re-entry bans and exclusion periods will not apply (see Re-entry bans and exclusion periods). Even where a person has already become unlawful, voluntary departure may increase their chances of returning to Australia on a valid visa.

Unlawful non-citizens should make sure their passport is valid, buy a ticket and meet with a compliance officer a week before leaving, if possible. They will then normally be granted a Bridging Visa E which will allow them to remain in Australia until their departure (see The role of bridging visas ). If an unlawful non-citizen attempts to leave without a bridging visa, they risk being detained and questioned by officers from the Department.

The role of bridging visas

Bridging visas are an important means of regularising the status of unlawful non citizens: non-citizens who would otherwise be unlawful can attain lawful status if granted a bridging visa. Bridging visas also provide a way for people who would otherwise be detained, to stay out of immigration detention. By obtaining a bridging visa, non-citizens can also avoid the operation of certain re-entry bans and exclusion periods (see Re-entry bans and exclusion periods) and therefore increase their chances of lawfully returning to Australia. However, non-citizens should remember that they are not automatically entitled to apply for other temporary or permanent visas just because they hold a bridging visa.

Unlawful non-citizens may apply for Bridging Visas C, D, E, F and R depending on their circumstances (see generally Bridging Visas).