Section 189 Detention of Unlawful Non-Citizens
Australia’s immigration policy includes mandatory detention for non-citizens found within its migration zone without a valid visa. This policy, which originated in the early 1990s, means that if you are an unlawful non-citizen, detention is not discretionary; it is a legal obligation for immigration officers.
What is the “Migration Zone”?
The “migration zone” is defined as being “in Australia”. It encompasses:
Australia’s states and territories (land, sea and ports).
Australian resources installations (e.g., offshore wind energy facilities, drilling units).
Australian sea installations (e.g., artificial reefs, oil and gas platforms).
If you are within this zone without Australian citizenship or a valid visa, you are classified as an “unlawful non-citizen”.
Mandatory Detention: Section 189 of the Migration Act 1958
Section 189 of the Migration Act 1958 grants immigration officers the mandatory power to detain unlawful non-citizens. The use of the word “must detain” leaves no room for discretion, regardless of the individual’s circumstances. This applies to both:
Unauthorised arrivals who enter Australia without a valid visa.
Authorised arrivals who initially enter with a valid visa that later expires or is cancelled.
Once detained, a person’s release is contingent on either:
The grant of a visa allows them to be released into the community.
Their voluntary departure or removal from Australia.
Options From Within Detention
For those within detention, specific sections of the Migration Act address their situation:
Section 194: Notification of Consequences, which immigration offices must inform detained individuals of the consequences of detention, the timeframe to apply for a further visa (Section 195), and the duration of detention (Section 196). If detained due to a Student Visa cancellation under s137J, they must also be informed of their ability to apply for revocation of the cancellation (s137K).
Section 195: Timeframe for Further Visa Application outlines the limited timeframe available for detainees to apply for another visa.
Section 193 addresses cases where Sections 194 and 195 do not apply to certain non-citizens.
Being detained is an incredibly complex and time-sensitive issue. Given the strict limitations, it is strongly encouraged to contact an Accredited Specialist in Immigration Law immediately. They specialise in handling highly complex matters such as visa cancellations.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Charged, Not Convicted: Does it Affect My Visa or Citizenship Application?
What does Substantial Criminal Records mean in Migration Law?
How Can Agape Henry Crux Help
Consider engaging an Accredited Specialist in Immigration Law - Jason Ling or Angela De Silva at Agape Henry Crux. They will be able to assist you in exploring the best visa options. You can schedule an appointment with one of our immigration lawyers to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
Client Testimonials
….we call it Support Network
As navigating through the immigration law process may be difficult, our former clients have agreed to share their experiences through telephone chats, emails and meetings in person.
These are their stories…
