Lexi Webster
Australia's immigration policy and treatment of refugees have been a touchy political topic for the last 20 years. While it is not a criminal offence to seek asylum in Australia, the country operates a mandatory detention policy for those who enter the country without prior approval. Australia's strict visa rules make it impossible for many people to get a visa, and most refugees have to apply for a visa for another reason. The majority of people in Australia illegally are visa overstayers, who enter the country legally but remain there after their visa expires.
| Characteristics | Values |
|---|---|
| Definition of illegal immigration | Migration Act 1958 distinguishes between "lawful non-citizens" (valid visa holders) and "unlawful non-citizens" (without a valid visa) |
| Administration | Department of Home Affairs |
| Detention facilities | Australia operates immigration detention facilities and offshore processing centres. Managed by Serco on behalf of the government. |
| Number of detention centres | 3 offshore centres and 10 detention centres on the mainland |
| Examples of centres | Nauru, Christmas Island, Manus Island |
| History of policies | Prior to 1992, Migration Act 1958 permitted discretionary detainment of unlawful non-citizens. In 1992, the Keating government introduced mandatory detention due to an increase in boat arrivals from Indochina. |
| Humanitarian intake | Australia has a humanitarian intake of around 13,770 migrants per year |
| Comparison to Migration Program | The humanitarian intake is much lower than the Migration Program, which was 168,600 places in 2009-2010 |
| Asylum seekers | Seeking asylum is not a crime under Australian law, with or without a valid entry visa. However, the term "illegal maritime arrivals" has been used controversially to describe asylum seekers. |
| United Nations Protocol | Australia is a signatory to the UN Protocol against the Smuggling of Migrants, which defines "illegal entry". |
| Majority of illegal immigrants | Visa overstayers, who enter legally but remain after visa expiry or revocation. |
| Percentage of overstayers | DIAC estimates that approximately 0.35% of temporary entrants in 2009-2010 overstayed their visas. |
| Boat arrivals | A small number undertake dangerous boat journeys from Indonesia, but most are caught by the Navy before reaching the mainland. |
| Political issue | What to do with unauthorised boat arrivals has been a contentious topic for the last 20 years. |
| Deportation | Australia deports some illegal immigrants, such as Sri Lankan nationals. |
| Visa rules | Australia has strict visa rules that make it challenging for refugees to obtain visas. |
| Refugee resettlement | Refugees can be resettled if referred by UNHCR or sponsored by someone in Australia, but this is not a feasible option for many. |
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What You'll Learn
Australia's immigration detention facilities
Australia operates a number of immigration detention facilities, including several offshore processing centres. These facilities are managed by the British services company Serco on behalf of the Australian government. Australia currently has three functioning offshore centres and ten detention centres on the mainland. The facilities include Christmas Island, Nauru, and Manus Island.
The Australian government claims that immigration detention is not punitive but an administrative function. It serves to detain those without valid visas while their claims to stay are assessed or their removal is facilitated. The use of the term "illegal" to describe asylum seekers is controversial. While entering Australia without immigration documents is not a criminal offence, the United Nations Protocol against the Smuggling of Migrants, to which Australia is a signatory, defines "illegal entry" as "crossing borders without complying with the necessary requirements for legal entry into the receiving State".
The Christmas Island Immigration Detention Centre, operated by Serco, has been a source of controversy. It has seen riots and escapes, as well as accusations of human rights abuses from organisations such as Amnesty International, the Australian Human Rights and Equal Opportunity Commission, and the United Nations.
The Nauru Regional Processing Centre and the Manus Regional Processing Centre in Papua New Guinea are other notable offshore immigration detention facilities. These centres have faced criticism and were closed in 2008, only to be reopened in 2012.
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The legality of seeking asylum
Australia has obligations to protect the human rights of asylum seekers and refugees under various international treaties, including the United Nations Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC). As a signatory to these treaties, Australia has agreed to the principle of non-refoulement, which means not returning refugees to a country where their life or freedom would be threatened.
Asylum seekers who arrive in Australia by boat without a visa are entitled to seek asylum and are classified as "asylum seekers" if their claim is found to be valid. They are allowed to remain in the country while their claim is being processed and are issued "bridging visas." If their claim is ultimately rejected, they have not committed a criminal offence but are liable for deportation.
The Australian government operates immigration detention facilities, both within the country and offshore, to accommodate asylum seekers during the processing of their claims. The conditions and treatment of asylum seekers in these facilities have been a focus of human rights organisations, with concerns raised about overcrowding and the specific vulnerabilities of this group.
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Visa overstayers
According to the Australian Bureau of Statistics, the majority of people in Australia illegally are visa overstayers, who enter the country legally but remain after their visa expires or is revoked. From 1 July 2009 to 30 June 2010, approximately 15,800 people overstayed their visas out of 4.5 million temporary entrants during that period (about 0.35%).
Overstaying a visa in Australia can result in serious consequences, including detention, deportation, and a ban from re-entering the country for at least three years. These measures are in place to ensure compliance with the law and maintain the integrity of the visa system. If an individual overstays their visa by less than 28 days, they may be detained, deported, or banned from re-entering. However, if they have an Australian partner, they may be able to apply for a partner visa to remain in the country legally, provided they can meet the eligibility criteria and provide supporting evidence.
If an individual overstays their visa by more than 28 days, they will face an exclusion period for their future visa applications, meaning their application will not be granted for a minimum of three years. This situation applies even if they left Australia voluntarily. Additionally, they must repay any debts owed to the Australian government, including the costs of detaining and removing them from the country.
It is important for visa overstayers to seek legal advice from registered migration agents or lawyers specialising in migration matters. Overstayers may have options to remain in Australia legally, such as applying for another type of valid visa like a protection visa or a dependent child visa, depending on their individual circumstances. They can also apply for a bridging visa to remain in the country while preparing for their departure or arranging another visa application.
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Australia's strict visa rules
Australia maintains a strict universal visa regime, meaning that every non-citizen in Australia must have a visa, either through an application or one granted automatically by law. The country does not issue visas on arrival except for New Zealand citizens, who can apply for a Special Category Visa (subclass 444) on arrival. All other passport holders, regardless of age, must apply for a visa before leaving their home country.
The visa policy of Australia outlines the requirements that a foreign national must meet to obtain a visa, which is a permit to enter and remain in the country. A visa may also grant the holder other privileges, such as the right to work or study, and may be subject to conditions. Australia offers a range of visa types, including tourist visas, working holiday visas, and Electronic Travel Authority visas (subclass 601), which allow multiple visits of up to three months each over a year. The application process may differ depending on the visa type, and applicants must submit their applications well in advance to allow for processing.
Australia has strict rules regarding visa compliance. The government calculates a "Modified Non-Return Rate" for Visitor visas, assessing the rate of people who do not depart before their visa expires. This rate is then considered when assessing future visa applications. Additionally, the Migration Amendment (Reform of Employer Sanctions) Act 2013 places the onus on businesses to ensure their employees maintain the necessary work entitlements. The legislation enables the Department of Immigration and Border Protection to levy infringement notices against employers who do not comply.
Australia also has strict customs and quarantine laws, particularly regarding the importation of food, drugs, and animal products. The Australian Border Force (ABF) regulates importations into the country, and travellers must pay close attention to Australian customs information before their visit.
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The term illegal maritime arrivals
The term "illegal maritime arrivals" refers to those who enter Australia by sea without a visa and seek asylum. It is important to note that while the term "illegal" is used, it is not a criminal offence in Australia to seek asylum or to enter the country without the necessary immigration documents for asylum-seeking purposes. This term was introduced by the Minister for Immigration, Scott Morrison, in 2013, replacing the previous description of "irregular maritime arrivals".
The use of the word "illegal" in reference to asylum seekers is controversial. The Australian Broadcasting Corporation's Fact Check unit has deemed it valid when describing an individual's entry status. However, as a signatory to the United Nations Convention relating to the Status of Refugees, Australia operates a humanitarian intake of migrants. This sees the country accept around 13,770 people per year.
The Migration Act 1958 defines unlawful non-citizens as those without a valid visa. Those who arrive by boat without a visa are entitled to seek asylum, and the majority do so. If the initial processing suggests a valid case, they are classified as "asylum seekers" and allowed to remain in the country until their claim is determined. They are given a bridging visa and if their claim is approved, they receive a permanent protection visa. If their claim is rejected, they are liable for deportation but have not committed a criminal offence.
The term "illegal maritime arrivals" is one of two classifications for irregular arrivals. The other is non-IMAs, referring to those who arrive in Australia without a visa by non-maritime means, such as by air. In the 2011-12 period, the number of IMAs exceeded non-IMAs for the first time.
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Frequently asked questions
Yes, according to the Migration Act 1958, which distinguishes between "lawful non-citizens" (those holding a valid visa) and "unlawful non-citizens" (those without a valid visa).
While it is not a criminal offence to seek asylum in Australia, those seeking asylum without a valid visa are classified as "unlawful non-citizens" until their claim is approved. If their claim is valid, they are granted a permanent protection visa. If their claim is rejected, they are liable to deportation but have not committed an offence.
Australia operates a number of immigration detention facilities, both within the country and offshore. Australia has strict visa rules that make it hard for refugees to gain entry, and the country has been criticized for indefinitely detaining those suspected of attempting to claim asylum.
