Is this your situation?
Your visa has expired or been cancelled and you do not have a current valid visa. You are still in Australia. You may know you are unlawful, or you may suspect it but are not sure. You might be afraid to contact anyone official because you think you will immediately be detained and put on a plane.
This is an understandable fear, but doing nothing makes the situation worse every day that passes.
What being unlawful means in practice
Under the Migration Act, a non-citizen in Australia without a valid visa is an unlawful non-citizen. The legislation says the Department has a duty to detain unlawful non-citizens. In practice, many people live in the community for extended periods without being detected, but the risk is always there.
Being unlawful means you cannot work legally. Any employer who knowingly hires you can be penalised. You may not be able to access Medicare or certain government services. If you come to the attention of the Department through a workplace compliance operation, a police check (even for a minor matter), a tip-off from someone, or any interaction with government systems, you face detention and removal.
The longer you remain unlawful, the worse the consequences become. A short period of being unlawful is less damaging to your future immigration prospects than a long one. The re-entry exclusion period (the ban on returning to Australia) can increase depending on how long you were unlawful and whether you departed voluntarily or were removed.
Your options while unlawful
Apply for a Bridging Visa E. In some cases, the Department will grant a BVE to an unlawful non-citizen. It is usually granted to people who are making genuine arrangements to depart, who have a pending application or review, or who have compassionate circumstances. A BVE is discretionary, short term, and may not include work rights.
Apply for a visa you are still eligible for. Some visa categories can be applied for even while unlawful. Protection visas (subclass 866) are the main example. If you face persecution or serious harm in your home country, you may be able to apply for protection regardless of your unlawful status.
Depart voluntarily. Voluntary departure is looked upon more favourably than forced removal. The re-entry exclusion period is shorter for people who leave voluntarily (typically 3 years versus longer for forced removal). The Department may assist with departure arrangements through the Status Resolution Service.
Contacting a migration agent is confidential
Contacting a registered migration agent is not the same as turning yourself in. A migration agent’s communication with you is professional and confidential. They will not report you to the Department. They will assess your situation, tell you what options exist, and help you make an informed decision about what to do.
Amanpreet Bhangoo (MARN 1573884) at Bullseye Consultant can assess your situation confidentially. Call 0416 965 968 or email info@bullseyeconsultants.com.au.
FAQ
Q: Will I be detained if I contact the Department?
There is a risk. The Department has a duty to detain unlawful non-citizens. If you present yourself to the Department, they may detain you. Talk to a migration agent before contacting the Department directly so you understand your options first.
Q: Can I get a visa if I am unlawful?
Section 48 and other provisions restrict which visas you can apply for while unlawful. However, some options may remain, particularly protection visas. Get specific advice from a registered migration agent.
Q: How does being unlawful affect my future visa applications?
Every period of unlawful stay goes on your immigration record and will be visible to future decision makers. It does not permanently bar you from ever getting an Australian visa, but it creates an adverse factor that you will need to address in any future application.
