Damon Mcknight
Australia has strict visa rules, making it impossible for many to obtain a visa. According to the Migration Act 1958, non-citizens in Australia are classified as either lawful (holding a valid visa) or unlawful (without a valid visa). While the term illegal immigrants is often used to refer to those without visas, this is misleading as seeking asylum is not a criminal offence. In fact, this is the normal way to claim refugee status. In 2018, it was estimated that over 60,000 foreigners were living illegally in Australia, a number that rose to 100,000 by 2021.
| Characteristics | Values |
|---|---|
| Definition | "Unlawful non-citizens" per the Migration Act 1958 are those without a valid visa. |
| Administration | Department of Home Affairs |
| Majority Type | Visa overstayers |
| Visa Overstayer Stats (1 July 2009 - 30 June 2010) | 15,800 overstayers out of 4.5 million temporary entrants |
| Visa Overstayer Stats (as of 30 June 2010) | 53,900 overstayers or 0.2% of the Australian population |
| Total Stats (2018) | Over 60,000 foreigners living illegally |
| Total Stats (2021) | Over 100,000 foreigners living illegally |
| Detention Facilities | 10 on the mainland, 3 offshore |
| Detention Facility Examples | Nauru, Christmas Island, Manus Island |
| Detention Facility Management | Serco, a British services company |
| Detention Policy | Mandatory detention since 1992 |
| Humanitarian Intake | Around 13,770 persons per year |
| Asylum Seekers | Not illegal, not a criminal offence |
| Refugee Status Claim | Normal way is via asylum seeking |
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What You'll Learn
Who is considered an 'illegal immigrant' in Australia?
In Australia, an "illegal immigrant" is defined by the Migration Act 1958 as an "unlawful non-citizen", which refers to someone who does not hold a valid visa. This includes both those who enter the country without a visa and those who overstay their visa. According to the Australian Bureau of Statistics, most people in Australia illegally are "visa overstayers", who enter the country legally but remain after their visa expires or is revoked.
The term "illegal immigrant" is often used to refer to asylum seekers who arrive by boat without a visa. However, this usage is controversial. While entering Australia without a visa is not legally authorized, it is also not a criminal offence. Asylum seekers who arrive by boat are entitled to seek asylum, and if their claim is rejected, they are liable for deportation but have not committed a crime. The Australian government typically refers to such entrants as "unauthorized boat arrivals" or "irregular maritime arrivals".
In 2018, it was reported that more than 60,000 foreigners were living illegally in Australia, a number that increased to over 100,000 by 2021. Australia operates several immigration detention facilities, both within the country and in offshore processing centres, to manage unlawful non-citizens.
It is important to note that the term "illegal" when applied to immigrants or asylum seekers can be misleading and prejudicial. It implies criminality and suggests that these individuals do not have rights, which is not always the case. Many asylum seekers are fleeing persecution and face challenges in obtaining the necessary documentation to enter Australia legally.
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How many people are living in Australia illegally?
In Australia, an "illegal immigrant" is defined by the Migration Act 1958 as an "unlawful non-citizen", or someone without a valid visa. This is in contrast to a "lawful non-citizen", who holds a valid visa. The term “illegal” in reference to asylum seekers is controversial, as it is not a criminal offence to seek asylum in Australia, or to enter Australian territory without immigration documents for the purpose of seeking asylum. However, the Australian Broadcasting Corporation's Fact Check unit has deemed the term valid when referring to an arrival's entry status.
According to the Australian Bureau of Statistics, most people in Australia illegally are "visa overstayers", who enter the country legally but remain after their visa expires or is revoked. In the period from 1 July 2009 to 30 June 2010, the Department of Immigration and Citizenship (DIAC) estimated that approximately 15,800 people overstayed their visas out of 4.5 million temporary entrants (about 0.35%). As of 30 June 2010, DIAC estimated that the number of visa overstayers in Australia was around 53,900, or 0.2% of the Australian population.
In 2018, it was reported that more than 60,000 foreigners were living in Australia illegally, and by 2021, this number had increased to over 100,000. More recently, in 2024, the Department of Home Affairs estimated that about 70,000 people were living in Australia unlawfully, many of whom had arrived on student or visitor visas.
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What are Australia's immigration detention facilities?
Australia currently operates three offshore immigration detention centres and ten detention centres on the mainland. These facilities include Nauru, Christmas Island, and Manus Island.
The Australian government claims that immigration detention is an administrative function, used to detain people who do not have a valid visa while their claims to stay are considered or their removal is facilitated. However, these facilities have been a source of much controversy, with riots, escapes, and accusations of human rights abuses from organisations such as Amnesty International and the United Nations.
The majority of people in Australia illegally are visa overstayers, who enter the country legally but remain after their visa expires or is revoked. In the 2011-2012 period, the number of Illegal Maritime Arrivals (IMAs) was greater than the number of non-IMAs (those arriving without a visa by non-maritime means) for the first time. Those arriving by boat without a visa are entitled to seek asylum, and almost all of them do so. If their claim is valid, they are classified as "asylum seekers" and allowed to stay in Australia while their claim is assessed. They remain "unlawful non-citizens" until their claim is approved or they receive a "bridging visa".
Australia's immigration detention facilities include the Brisbane Immigration Detention Centre, Melbourne Immigration Detention Centre, and Perth, established in 1981. There are also Immigration Transit Centres (ITCs) for short-term, low-risk detainees, which can include hospital or rented accommodation.
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What are the legal rights of asylum seekers in Australia?
The legal status of asylum seekers in Australia is complex. Asylum seekers are people who have fled their country and applied for protection as refugees. Refugees are those who are outside their own country and are unable or unwilling to return due to a well-founded fear of persecution.
Asylum seekers who arrive in Australia by boat without a visa are not considered to have committed a criminal offence, but their entry is also not legally authorised. The Australian government refers to such entrants as "unauthorised boat arrivals" or "irregular maritime arrivals". These individuals are entitled to seek asylum and, if the government's initial processing suggests they may have a valid case, they are classified as "asylum seekers" and allowed to stay in Australia while their claim is assessed. They are considered “unlawful non-citizens” until their claim is approved, at which point they receive a permanent protection visa. If their claim is rejected, they have not committed an offence but are liable to deportation.
While their claim is being processed, asylum seekers are typically held in immigration detention facilities. Australia operates several of these centres, both on the mainland and offshore. There is no legal limit to the length of time a person can be held in immigration detention, and asylum seekers may spend long periods awaiting the assessment of their claim, completion of security checks, or awaiting removal from Australia if their claim is rejected. However, in recent years, there has been a shift towards allowing asylum seekers to reside in the community while their claims are assessed, after an initial period in closed detention.
Asylum seekers in Australia have certain rights that must be respected and protected by the Australian government, in accordance with various international treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture, and the Convention on the Rights of the Child. These rights include protection from arbitrary detention and the principle of non-refoulement, which means that Australia has agreed not to send asylum seekers who meet the definition of a refugee back to a country where their life or freedom would be threatened.
Additionally, asylum seekers who receive a temporary protection visa (subclass 785) are given the right to live in the community and choose their housing. However, they face challenges due to their uncertain legal status, which can deter housing providers from offering leases. Asylum seekers also face difficulties in terms of income and working rights, as they are unable to work legally in Australia, which has a direct impact on their mental health.
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How does Australia's immigration system work?
Immigration to Australia is administered by the Department of Home Affairs, which distinguishes between "lawful non-citizens" (those holding a valid visa) and "unlawful non-citizens" (those without a valid visa). The Migration Act 1958 defines unlawful non-citizens as illegal immigrants, and they are further classified as Illegal Maritime Arrivals (IMAs) and non-IMAs. IMAs refer to those who arrive in Australian territory without a visa by sea, while non-IMAs enter by other means, such as air travel.
The Australian immigration system operates through the Migration Program, which is set annually to achieve various economic and social outcomes. The program includes skilled migration and family reunion initiatives, contributing to the country's economic growth and social cohesion.
Asylum seekers who enter Australia by boat without a visa are considered "unauthorised boat arrivals" or "irregular maritime arrivals." They are entitled to seek asylum, and if their claim is deemed valid, they are classified as "asylum seekers." During the asylum process, they are allowed to stay in Australia and receive a "bridging visa" until their claim is finalised. If their claim is rejected, they are liable for deportation but have not committed a criminal offence.
Australia operates immigration detention facilities, including offshore processing centres, to manage unlawful non-citizens. The country's mandatory detention policy has attracted controversy, particularly regarding unauthorised arrivals by boat.
The Federal Court of Australia plays a role in reviewing migration decisions, addressing jurisdictional errors. Applicants seeking a review must do so within 35 days of the migration decision.
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Frequently asked questions
In Australia, an "illegal immigrant" is referred to in law as an unlawful non-citizen, which means they do not have a valid visa.
It is not a criminal offence to seek asylum in Australia, but those doing so are classed as “unauthorised boat arrivals” or “unlawful non-citizens" until their claim is approved. 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. In 1992, the Keating government introduced a policy of mandatory detention, which has been criticised by several organisations. In 2023, the High Court ruled that the practice was unlawful and unconstitutional.
Refugees can be resettled in Australia if the UNHCR refers them, or if someone in Australia sponsors them. However, this is not a realistic option for many refugees, as the process is long and strict, and it is expensive for sponsors.
