Unlawful non-citizens facing criminal charges


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Tensions between Commonwealth, State and Territory Laws and the Migration Act 1958 (Cth).

Fisher Dore Lawyers recently represented a man facing serious criminal charges who had resided in Australia since 2010 on a Temporary Work (Skilled) Visa. Although he was granted bail in the Magistrates Court, the man was detained immediately upon his release by Australia Border Force (ABF) officers following a decision of the Minister to cancel his visa[1]. A subsequent appeal of the cancellation decision before the Administrative Appeals Tribunal (AAT) was unsuccessful and the man was detained at an immigration detention facility, pending his imminent deportation[2].

Interestingly, the prosecution subsequently brought an application in the Supreme Court for the revocation of the man’s bail undertaking in an effort to hinder his deportation (and ensure his prosecution) through his remand in Queensland Corrective Service’s custody. The primary basis of the application was that it was ‘necessary or desirable in the interests of justice to do so’[3].  It was argued by the Crown Prosecutor that the desired purpose of a Criminal Justice Stay Certificate was rendered ineffective by virtue of section 198(1) of the Migration Act 1958, hence why it had not been pursued on this occasion. 

In response, Fisher Dore argued that section 196(1) unequivocally provides that an unlawful non-citizen detained under section 189 must be kept in immigration detention until the Department of Home Affairs is satisfied that a specified exception exists. Further, it was emphasised that section 196(3) clarifies that section 196(1) prevents the release, even by a court, of an unlawful non-citizen from detention unless that person has been granted a visa.

Accordingly, Fisher Dore argued that what was being sought by the Crown was an exercise of judicial power to circumvent a deportation decision of the Commonwealth by effecting his release from immigration detention to his remand in criminal custody.

Relevantly, in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, the High Court commented on the tension that may arise from the concurrent operation of the Migration Act with respect to criminal detention and the correct approach to be followed by way of resolution. In a unanimous judgement, the following was noted:

[60] The possibility that, in the circumstance to which the plaintiff refers, a person might be a prisoner serving a term of imprisonment for an offence and an unlawful non-citizen liable to be detained and removed from Australia as soon as reasonably practicable points to a possible tension between the provisions of Commonwealth, State and Territory laws and the Migration Act.

[61] The Migration Act contains provisions intended to address that problem. The provisions of Pt 2, Div 4 permit a non-citizen to stay in Australia for the purposes of the administration of justice, which is defined to include punishment, by way of imprisonment of a person, for the commission of an offence. The focus of the Division is on maintaining the presence in Australia of persons who would not otherwise be permitted to enter or remain here.

[62] It is not necessary to detail each of the provisions of Pt 2, Div 4. It is sufficient to observe that they involve the grant by the Commonwealth Attorney-General or an official of a State of a criminal justice certificate which has the effect that, during its currency, the person is not to be removed or deported from Australia and the issue of a warrant by a court to stay the removal or deportation of a non-citizen. If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa… 

Relevantly, the requisite criterion for an authorised official to issue a criminal justice stay certificate are outlined in sections 147 and 148 of the Act and the prohibitive effect that these certificates have on the deportation or removal of a non-citizen is covered under section 150. Section 158 addresses the criteria that must be satisfied for Criminal Justice Visas and section 159 confers the discretionary power to the Minister to consider the granting of a Criminal Justice Visa for a non-citizen.

Whilst, on the face of it, it appears that Part 2 Division 4 of the Act adequately addresses the potential tensions, practical issues arise by virtue of the following:

  • Sections 147(1)(c) and 148(1)(c) provide that the authority seeking the grant of a stay certificate may be liable for meeting the costs of keeping the non-citizen in Australia; and
  • Section 198(1) imposes an obligation on the Minister to remove an unlawful non-citizen as soon as reasonably practicable who asks in writing to be so removed.

The Court ultimately dismissed the application in relation to Fisher Dore’s client, having regard to the comments of the High Court in Falzon. Nevertheless, the approach taken by the Crown in the case reflects the practical difficulties that exist in respect of the preferred approach and illustrates reluctance of prosecutorial authorities to follow the approach laid down by the High Court. 

It would seem further clarification by the courts may be necessary to adequately assist in future cases where similar tensions arise.

  1. Pursuant to Migration Act 1958 (Cth) s 116(1)(e).

  2. Migration Act 1958 (Cth) ss 196, 198.

  3. Pursuant to Bail Act 1980 (Qld) s 30(1).

  1. Photo credit: Rodnae Productions

Written by: Fisher Dore

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.


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