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Who are lawful and unlawful non-citizens?
Lawful non-citizens are nationals from another country who have 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.
Unlawful non-citizens are nationals from another country who do 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 whose visas have been 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 agree 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 take up 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 2009–10 financial year, it was estimated that approximately 15 800 people overstayed their visa. This compares with about 4.5 million temporary entrants over the same period—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.
The estimated number of people who have overstayed their visas and are in Australia at any one time was about 53 900 as at 30 June 2010. The number of overstayers equates to about 0.02 per cent of Australia's population.
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 most students who apply and are granted a student visa may work only 40 hours per fortnight while their courses are in session.
Where visa holders breach 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 cancelled while they are in Australia, they become unlawful non-citizens.
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. They also connect them with appropriate services on a needs basis, assisting 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. Where unlawful non-citizens refuse 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 taking job opportunities away from unemployed Australian citizens and residents.
The department provides support for employers to assist them to confirm whether people who are temporarily in Australia are entitled to work.
See: Fact Sheet 87 – Initiatives to Combat Illegal Work in Australia
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. Referrals may be made by employers, educational institutions, departmental investigations, community information, police or other government agencies.
Three government departments—the Department of Immigration and Border Protection, Centrelink and the Australian Taxation Office—share information so as 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 may 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.
Further information is available on the department's website.
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.
Fact Sheet 86. Produced by the National Communications Branch, Department of Immigration and Border Protection, Canberra.
Revised March 2012.
© Commonwealth of Australia 2009.