This part (questions 41 to 50) covers the migration matters with the most serious consequences: immigration detention, removal, urgent injunctions, protection visas and ministerial intervention. What they have in common is very short time limits and strict procedures; once a statutory deadline is missed, it is often hard to put right. The answers below are general information based on the Migration Act 1958 (Cth) and related procedures.
Immigration detention and removal
41. What is immigration detention?
Under section 189 of the Migration Act 1958, an officer who knows or reasonably suspects that a person in Australia is an unlawful non-citizen (a non-citizen without a valid visa) must detain them. Detention usually continues until the person is granted a visa or leaves Australia. Visa cancellation, overstaying after a visa expires, or being refused entry can all lead to detention.
42. Can I apply for release from immigration detention?
The most common route is a bridging visa, but the types of bridging visa available to people in detention, and their conditions, are strictly limited. The Minister can also use personal discretion to grant a visa or approve community placement. In addition, the High Court held in NZYQ (2023) that a person cannot be detained indefinitely where there is no real prospect of removing them in the reasonably foreseeable future; many of the people affected have since been granted bridging visas with conditions. Whether this applies depends on the facts of each case.
43. Can I see a lawyer while in immigration detention?
Yes. Section 256 of the Migration Act 1958 provides that, at a detainee's request, the authorities must give them reasonable facilities to obtain legal advice or take legal proceedings. Lawyers can visit detention centres, or arrange phone or video conferences.
44. What is an urgent injunction?
If you have applied to a court for Judicial review, or are about to, and removal is imminent, you can apply to the Federal Circuit and Family Court of Australia or the Federal Court for an interim injunction stopping removal while the case is heard. The court considers whether there is a serious question to be tried and whether the balance of convenience favours stopping removal. The application needs a proper basis and must be made quickly.
45. Can I stop my removal if it is imminent?
Section 198 of the Migration Act 1958 requires an unlawful non-citizen to be removed as soon as reasonably practicable. Whether removal can be delayed depends on whether a visa application, review or court case is still pending, and whether there are new legal grounds to raise. Get legal advice immediately and have all your documents ready, including your passport, visas and earlier decisions.
Protection visas and ministerial intervention
46. What is a protection visa?
A Protection visa (subclass 866) is a permanent visa for people in Australia who meet the definition of a refugee or the criteria for complementary protection, under section 36 of the Migration Act 1958. Applicants must show a real risk of serious harm if returned to their home country, and must meet health, character and security requirements. A refusal can usually be reviewed by the Administrative Review Tribunal (ART). The ART replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024, and the Immigration Assessment Authority (IAA) was abolished at the same time.
47. What is a ministerial intervention request?
After the Tribunal makes an adverse decision, the Minister may personally intervene in the public interest under provisions such as section 351 or 417 of the Migration Act 1958, substituting a more favourable decision. This is a non-compellable personal power: the Minister is not obliged to consider any request, and you cannot rely on it as a basis for staying in Australia. Requests must fit the unique or exceptional circumstances described in the ministerial guidelines, and you need to keep an eye on your visa status and bridging visa arrangements.
Process and strategy
48. Can several processes run at once in a migration case?
In some cases, yes: for example, making a ministerial intervention request while seeking judicial review, or applying for another visa if you are eligible. But the Migration Act 1958 limits further onshore applications after a refusal (for example, the section 48 bar), and different processes can affect each other. Whether to run them at the same time should be decided after a full assessment.
49. How long do migration cases take?
Processing times vary widely with the visa type, the complexity of the case and the caseloads of the Tribunal and the courts, and no one can guarantee them in advance. Home Affairs and the ART publish general processing time information on their websites, which is a useful guide, but the time an individual case will take cannot be predicted precisely.
50. Why get legal advice early in a complex migration case?
Detention, removal, character cancellations and protection visa matters involve strict time limits, complex legal tests and serious personal consequences. Early legal advice helps you identify the available processes, preserve evidence and meet deadlines, and avoid losing the chance of review or appeal through a procedural mistake.
How we help
Two of our lawyers are Accredited Specialists in Immigration Law (Law Institute of Victoria). We can help with bridging visa applications, ART review, judicial review and ministerial intervention requests, and can meet clients at detention facilities or by video. For more information, see Australian immigration law services.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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