Navigating Australia’s complex visa system can be daunting, and understanding the implications of visa cessation and unlawful status is critical for non-citizens. Losing a visa doesn’t just mean losing the right to remain in Australia—it can lead to severe consequences, including detention, removal, or bans on re-entry. This article outlines how visas cease, the concept of unlawful non-citizen status, and what individuals in these situations can do.

How Do Visas Cease?

Under the Migration Act 1958 (Cth), a visa remains valid until it is canceled, expires, or ceases due to specific circumstances outlined in Section 82 of the Act. Common reasons for visa cessation include:

• Cancellation: A visa may be canceled under various grounds, including breaches of visa conditions.
• Expiry: Visas have a set validity period, after which they expire.
• New Visa Grant: If another substantive visa is granted, the previous visa ceases to be effective.
• Departure from Australia: Single-entry visas automatically cease upon departure.

For permanent visa holders, caution is needed when traveling. A permanent visa may cease if the holder leaves Australia more than five years after the visa grant without obtaining a Resident Return Visa.

Becoming an Unlawful Non-Citizen

A non-citizen in Australia without a valid visa is deemed an unlawful non-citizen under Section 13 of the Act. This status can arise if:

• The individual enters Australia without a visa.
• A visa expires while the individual is still in Australia.
• The visa is canceled.

Once a person becomes unlawful, they face mandatory detention under Section 189 and may be removed from Australia under Section 198 unless they apply for a substantive visa or are granted a Bridging Visa.

Implications of Unlawful Status

1. Detention and Removal: Unlawful non-citizens are detained until they can be removed from Australia unless they secure lawful status. Removal can lead to a re-entry ban of at least one year, unless compelling or compassionate reasons apply.
2. Costs and Penalties: Detention costs may need to be settled before a new visa is granted. Furthermore, a voluntary departure may avoid a re-entry ban, unlike removal under Section 198.
3. Limited Visa Options: Unlawful non-citizens face strict limitations on the types of visas they can apply for. For example, those in detention have a narrow window to apply for a substantive visa.

Can Unlawful Non-Citizens Apply for a Visa?

Yes, but restrictions apply. For instance:

• If in detention, an individual must apply for a substantive visa within two working days of notification. This can be extended by five days if requested within the initial period.
• Certain applications, such as Protection Visas, remain viable even after this window has passed.
• Non-citizens who were not immigration-cleared face further restrictions on the visas they can apply for.

Additional requirements under Schedule 3 of the Migration Regulations often apply to unlawful non-citizens, including demonstrating compelling reasons for overstaying or non-compliance with prior visas.

Avoiding or Resolving Unlawful Status

Preventive measures are key to avoiding unlawful status. Ensure visa renewals or changes are handled promptly and seek legal advice if circumstances change. If unlawful status arises, timely action is essential to minimize consequences.

At Montgomery Legal Practice, we understand the stress and uncertainty that come with visa issues. Whether you’re concerned about losing your visa, navigating unlawful status, or applying for a new visa, our experienced team is here to help. Contact us today to discuss your situation and find tailored solutions for your migration needs.