Immigration detention after a visa cancellation: why it follows, the bridging visa from detention, the review and its deadline, and the Minister’s power

MARN 1576536

Why detention follows cancellation

Section 189 of the Migration Act provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain the person, and a non-citizen in Australia who does not hold a visa is an unlawful non-citizen; a visa cancelled while the holder is in Australia leaves the holder without a visa from the moment the cancellation takes effect, and the officer who cancels, or the police officer who finds the person at a roadside check or a station, detains. There is no discretion in the section, no assessment of whether detention is warranted, and no bail; the person is taken to an immigration detention facility, or held in a police cell or an alternative place of detention until transfer, and remains detained until a visa is granted or they leave Australia. The exceptions are the person granted a bridging visa at the moment of cancellation, which the Department does for some cancellations where it intends the person to depart voluntarily, and the person released to residence determination or community detention at the Minister's direction, which is rare. The cancellation notice guide covers the notice that precedes most cancellations and the response that can prevent them.

The first hours

1. The person is given the notice of cancellation, which states the ground, the review rights and the period; they keep it, photograph it and send it to the family and the lawyer, because every deadline runs from it.
2. They are told where they are being taken and are permitted to tell someone; they give the family the detention centre's name and their detainee identification.
3. They ask to contact a lawyer or a migration agent, which the Act and the centre's rules permit, and the centre provides a phone.
4. They say nothing about the facts of the cancellation to officers beyond what the notice requires, and sign nothing they have not read, including a request for voluntary removal.
5. The family contacts a lawyer or agent the same day, with the notice, because the review period is days.

The bridging visa E from detention

A detainee can apply for a bridging visa E, which if granted ends the detention and permits the holder to remain in the community while a matter is resolved or departure is arranged; the application is lodged on the Department's form from the centre, by the detainee or a representative, and the Department decides it on the criteria for the visa and on its policy for detainees: whether the person's identity is established to the Department's satisfaction, by passport or other documents; whether the person is likely to comply with the conditions, read from their history of compliance and the circumstances of the cancellation; whether there is a matter on foot, a review, a visa application or a ministerial request, that gives a reason for the person to be in the community while it runs; whether the person has arrangements to depart where no matter is on foot; and whether the person poses a risk to the community, read from any charges and the police history. A bridging visa E for a detainee whose visa was cancelled for a breach of conditions, with a review lodged, with identity established and with an address to go to, is granted in many cases within days to weeks; a detainee whose cancellation was on character grounds, whose identity is in doubt, or who has a history of absconding or non-compliance is refused, and the refusal is reviewable at the Tribunal within a short period. The bridging visa carries conditions, commonly reporting to the Department, residence at a stated address, no work, and the conduct condition, and a breach of any returns the holder to detention. The bridging visa E guide covers the visa.

The review of the cancellation

A cancellation under section 116 of a person who was in Australia is reviewable at the Tribunal, and the application must be lodged within the period the regulations set, which for a person in immigration detention is shorter than for a person in the community, a matter of days from the date the notice was given, with no power in the Tribunal to extend it; the lawyer lodges the application inside the period with the fee or the fee waiver, and the Tribunal lists a detainee's matter with priority. The review is a fresh decision on whether a ground for cancellation existed and whether the discretion should be exercised to cancel, with the detainee's circumstances, the consequences of cancellation and the Department's policy weighed; a review that succeeds restores the visa and the detainee is released on it. A cancellation of a visa under other provisions has its own review and its own period, and some cancellations, of a bridging visa granted to a person who was unlawful, have none. The Tribunal guide covers the application and the hearing.

The Minister's power under section 195A

Section 195A gives the Minister a personal, non-compellable power to grant a visa of any class to a person in immigration detention where the Minister thinks it is in the public interest, without an application and without the visa's criteria being met; it cannot be applied for, the Minister has no duty to consider it, and the Department refers cases to the Minister under guidelines that cover detainees whose circumstances are compelling, the long-detained, the unwell, those with Australian family, and those the Department itself considers should be released. A request that the Department refer the case is made in writing, with the detainee's circumstances and the evidence, and the Department assesses it against the guidelines; the Minister can grant a bridging visa, a substantive visa, or nothing, and a decision not to intervene is not reviewable. The request is made alongside the bridging visa application and the review, not instead of them, and the intervention guide covers the Minister's powers and the guidelines.

The bridging visa cancelled on a charge

A bridging visa E granted since 2013 carries condition 8564, that the holder must not engage in criminal conduct, and the Department's practice is to cancel a bridging visa E under section 116 where the holder is charged with an offence, before any conviction, on the ground that the holder has not complied with the condition or that the holder's presence is a risk; the holder is detained on the cancellation, and the criminal matter proceeds with the person in immigration detention, produced to court from the centre. The cancellation is reviewable at the Tribunal within the detainee's period, and the Tribunal has set aside cancellations where the charge was minor, where bail was granted on conditions, or where the Department did not weigh the circumstances; a further bridging visa E can be applied for from detention with the charge's nature, the bail, the likely outcome and the time to trial before the Department, and it is granted where the risk is low. A charge that ends in a conviction and a sentence of twelve months or more, including suspended, moves the case into section 501. The charged guide covers what a charge does to any visa.

The character cancellation

A visa cancelled under section 501, on character grounds, by the Minister or a delegate, and in particular the mandatory cancellation under section 501(3A) of a person serving a full-time custodial sentence who has a substantial criminal record, gives no bridging visa and no Tribunal review in the ordinary sense: the person is detained on release from prison, or at once if not in custody, and the route is a request that the cancellation be revoked, lodged within the period the notice sets, which is short, with the representations and the evidence under the direction in force, decided by the Minister or a delegate, with review at the Tribunal of a delegate's refusal to revoke and judicial review of the Minister's. A detainee under section 501 remains detained through the revocation request and any review, which is why those detentions run to many months, and the Minister's section 195A power is the only release short of a successful revocation. A person whose visa was cancelled at the airport on arrival on character grounds is detained there and removed on the next flight unless a review is lodged in the hours available. The character guide covers section 501 and the revocation request, and the airport guide the cancellation in clearance.

Removal and voluntary departure

Section 198 requires an officer to remove an unlawful non-citizen in detention as soon as reasonably practicable, and the Department removes a detainee who has no application, review or request on foot, whose identity and travel documents are in order, and whom no protection obligation prevents from being returned; a detainee with a review pending is not removed while it runs, and a detainee who has made a protection claim is not removed to the country of harm while it is assessed. The Department can remove a person on a commercial flight with escorts and recover the cost as a debt to the Commonwealth, which bars a later visa until paid, and a person removed carries a removal on the record with the exclusion period that applies. A detainee who accepts that the matters are exhausted can request voluntary departure, arranging and paying for their own flight, which is quicker, is not a removal on the record, avoids the removal debt, and leaves open the later visa the removal would complicate; the Department facilitates it, and the consultation says when it is the right choice. The Department does not detain a person indefinitely where removal is not practicable, under the court's reading of the Act, and a detainee who cannot be removed for want of a country to receive them is released on a bridging visa with conditions.

Inside detention: phone, lawyer, legal aid

• A detainee is entitled to contact a lawyer or agent and to have them visit, and the centre provides phones, with a mobile phone permitted in most centres subject to the rules.
• Legal aid and community legal centres provide advice to detainees in the main centres, and a detainee without means asks the centre to arrange it; the lawyer can attend the Tribunal and the Department on the detainee's behalf.
• Medical care is provided in the centre, and a detainee with a condition, a medication or a mental health need tells the health staff at once.
• The detainee's property, car, lease and employment are the family's to manage, with the detainee's written authority where the bank or the landlord needs it.
• Visits are permitted at set times, and the family books them with the centre.
• A detainee is produced to court for criminal matters and can attend the Tribunal by video or in person.

What the family does

1. Get the cancellation notice and read the period for review; count the days from the date it was given.
2. Engage a lawyer or agent the same day, and give them the notice, the passport details and the detainee's identification.
3. Lodge the review inside the period, the bridging visa E application at once, and the ministerial request where the guidelines fit; all three together.
4. Gather the evidence: the passport or identity documents, the address the detainee will live at, the family's support, the employment, the medical reports, the character references, and the circumstances behind the cancellation.
5. Put money in the detainee's account at the centre for the phone, and book a visit.
6. Manage the detainee's property and obligations, with written authority.
7. Do not pay anyone who promises release for a fee; the three routes are the only routes, and a registered agent or lawyer runs them.

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General information only, current at October 2026; not advice on your own case. Sections 116, 189, 195A, 196, 198, 501 and 501CA of the Migration Act 1958, the Bridging E visa criteria and condition 8564 in the Migration Regulations 1994, the review periods for detainees in the regulations, and the Minister’s guidelines on referral of detention cases, as in force at the date above; the Department’s practice on bridging visas for detainees and on cancellation of bridging visas on charges is a matter of its policy and the current position governs. Outcomes depend on the Department’s and the Tribunal’s assessment of each case; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.