Fact Sheet 86 – Overstayers and Other Unlawful Non-citizens

Who are lawful and unlawful non-citizens?

A lawful non-citizen is a national from another country who has the right to be in Australia either indefinitely or temporarily because they hold a permanent or temporary visa.

The majority of people who enter Australia either permanently or temporarily remain lawful by complying with the conditions of their visa. Currently, more than 99 per cent of visa holders remain lawful while in Australia.

An unlawful non-citizen is a national from another country who does not have the right to be in Australia. The majority of unlawful non-citizens in Australia at any given time have either overstayed the visa issued to them or are people who have had their visa cancelled. Some unlawful non-citizens will have entered Australia without a visa.

Who are overstayers?

By applying for a visa to enter Australia temporarily, people give an undertaking to comply with the conditions of their visa including the requirement to leave Australia before their visa expires.

Provisions also exist for people to legitimately extend their time in Australia and, in general, people access these provisions rather than overstaying their visa and becoming unlawful.

A small number of people do however fail to depart Australia before their temporary visa expires and become an overstayer.

In the 2007-08 financial year, it was estimated that around 14 000 people overstayed their visa. This compares with around 4.5 million temporary entrants over the same period or an overstayer rate of less than half a per cent.

People who become overstayers arrive in Australia on a variety of temporary visas, but mainly visitor visas including electronic travel authorities.

Many people who are recorded as overstayers are simply extending their stay in Australia by a few days or weeks, and leave of their own accord within a short period. Others overstay for a longer period, for example out of a desire to live and work in Australia.

These long-term overstayers become neighbours, friends, colleagues, employees and even relatives of lawful Australian residents, some of whom might not be aware of their unlawful status.

The Australian migration program ensures that prospective permanent migrants meet criteria generally based on skills and/or family relationships. These criteria include stringent checks of health and character reflecting the long term nature of their stay in the Australian community. Some overstayers have undergone less stringent checks reflecting the short duration of their temporary visa. They also may not meet migration criteria if they were to apply for a permanent visa.

An estimate of the number of overstayers in the Australian community is calculated every six months. Since June 2004, this estimate has remained below 50 000 against a total Australian population of around 21 million.

Why do people have their visa cancelled?

There are conditions attached to each type of visa.
Example: Tourists are prohibited from working while on holiday in Australia and students who apply and are granted a visa with a work permit may work only 20 hours per week while their courses are in session.

If a person breaches the conditions of their visa or it is found that they should no longer be entitled to hold a visa due to their character or other reasons, then their visa may be cancelled. If a person's visa is cancelled while they are in Australia, they become an unlawful non-citizen.

Bridging visas

In general, non-citizens may be given temporary lawful status through the grant of a bridging visa. This allows them to make arrangements for their departure from Australia or, if eligible, to seek a further visa.

The department now has a Community Status Resolution Service available for non-citizens who have an unresolved immigration status because they hold a bridging visa or are unlawful in the community.

The Service engages with individuals who require some assistance to resolve their immigration status.

Staff provide information to clients about their immigration and departure options, as well as connect them with appropriate services on a needs basis, to assist them to achieve an immigration outcome.

Further information is available by contacting the department.

Consequences of being unlawful

Unlawful non-citizens have no entitlement to remain in Australia and are expected to depart. If an unlawful non-citizen refuses to leave Australia voluntarily, they may be detained and removed from Australia at the earliest practicable opportunity.

Overstayers and others who are working illegally are also taking job opportunities away from unemployed Australian citizens and residents.

The department provides support for employers to assist them to confirm whether a person who is temporarily in Australia is entitled to work. Details of these services are contained in Fact Sheet 87.

Locating unlawful non-citizens and people in breach of their working conditions

The department uses a wide range of sources to locate unlawful non-citizens and people breaching their visa conditions. These include referrals from employers, educational institutions, departmental investigations, community information, police and other government agencies.

Three government departments – Immigration and Citizenship, Centrelink and the Australian Taxation Office – work together in areas of the cash economy to locate non-citizens who are employed illegally, or claiming welfare payments and benefits to which they are not entitled.

Exclusion from Australia

Persons who overstay their visa by more than 28 days become subject to an exclusion period that prevents them from being granted a temporary visa to travel to Australia for three years. This exclusion period applies whether they leave voluntarily or not.

Even after the exclusion period has finished, the person cannot be granted a visa unless they repay any debt they owe to the Commonwealth, including for costs of removal, or they make satisfactory arrangements to repay their debt.

Fact Sheet 86. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Revised 31 August 2009.
© Commonwealth of Australia 2009.