Compilation #171 | Effective 2026-06-04
FRBR Work URI: /akn/au/act/1958/62
This Act may be cited as the Migration Act 1958.
The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.
The Acts specified in the Schedule to this Act are repealed.
(2) Section 9 of the War Precautions Act Repeal Act 1920-1955 and the heading to that section, and the Schedule to that Act, are repealed.
(3) The War Precautions Act Repeal Act 1920-1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920-1958.
Notwithstanding the repeals effected by this section:
(a) a certificate of exemption in force under the Immigration Act 1901-1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed.
For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re-entered Australia and, upon or after the re-entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia.
Unless the contrary intention appears, if a provision of this Act:
would, apart from this section, have an invalid application; but
also has at least one valid application;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.
Despite subsection (1), the provision is not to have a particular valid application if:
apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or
the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.
Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).
This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.
In this section:
application means an application in relation to:
one or more particular persons, things, matters, places, circumstances or cases; or
one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.
valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.
If:
this Act would result in an acquisition of property; and
any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth must pay that person:
a reasonable amount of compensation agreed on between the person and the Commonwealth; or
failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
In this Act, unless the contrary intention appears:
absorbed person visa has the meaning given by section 34.
adjacent area means an adjacent area in respect of a State, of the Northern Territory, of Norfolk Island, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.
adoption has the same meaning as in the regulations.
allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.
applicable pass mark means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
application to be reviewed on the papers: see subsections 367C(2) and (3).
appointed inspector has the meaning given by section 140V.
approved family sponsor means a person: who has been approved under section 140E as a family sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class. approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
who has been approved under section 140E as a family sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class.
approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
approved sponsor means:
an approved family sponsor; or
an approved work sponsor.
approved work sponsor means:
a person:
who has been approved under section 140E as a work sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
a person (other than a Minister) who is a party to a work agreement.
Note: A partnership or an unincorporated association may be an approved work sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.
area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).
arrival control determination has the meaning given by section 84B.
ART means the Administrative Review Tribunal.
ART Act means the Administrative Review Tribunal Act 2024.
ART Act migration decision: see section 474A.
ART member means a member of the ART.
ART practice directions means practice directions made under section 36 of the ART Act.
ART Principal Registrar means the Principal Registrar within the meaning of the ART Act.
ASIO means the Australian Security Intelligence Organisation.
ASIO Act means the Australian Security Intelligence Organisation Act 1979.
assessed score means the total number of points given to the applicant in an assessment under section 93.
assessment, in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.
association: a person has an association, for the purposes of subsections 5C(1A), 500A(1A) and 501(6A), with an organisation if the person meets or communicates with the organisation.
Australian Border Force Commissioner has the same meaning as in the Australian Border Force Act 2015.
Australian passport means a passport issued under the Australian Passports Act 2005.
Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.
Australian seabed means so much of the seabed adjacent to Australia as is: within the area comprising: (i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and the Coral Sea area; and part of: the continental shelf of Australia; the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
Note: The association may consist of a single meeting or communication.
within the area comprising:
(i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and
the Coral Sea area; and
part of:
the continental shelf of Australia;
the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or
the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.
Australian waters means:
in relation to a resources installation—waters above the Australian seabed; and
in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision.
authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.
behaviour concern non-citizen means a non-citizen who: has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if: any period concurrent with part of a longer period is disregarded; and any periods not disregarded that are concurrent with each other are treated as one period; whether or not: the crimes were of the same kind; or the crimes were committed at the same time; or the convictions were at the same time; or the sentencings were at the same time; or the periods were consecutive; or has been charged with a crime and either: found guilty of having committed the crime while of unsound mind; or acquitted on the ground that the crime was committed while the person was of unsound mind; has been removed or deported from Australia or removed or deported from another country; or has been excluded from another country in prescribed circumstances;
Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
any period concurrent with part of a longer period is disregarded; and
any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
the crimes were of the same kind; or
the crimes were committed at the same time; or
the convictions were at the same time; or
the sentencings were at the same time; or
the periods were consecutive; or
has been charged with a crime and either:
found guilty of having committed the crime while of unsound mind; or
acquitted on the ground that the crime was committed while the person was of unsound mind;
has been removed or deported from Australia or removed or deported from another country; or
has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
bogus document means a document that the Minister reasonably suspects is a document that: purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly.
purports to have been, but was not, issued in respect of the person; or
is counterfeit or has been altered by a person who does not have authority to do so; or
was obtained because of a false or misleading statement, whether or not made knowingly.
bridging visa has the meaning given by section 37.
brought into physical contact has the same meaning as in the Sea Installations Act.
bypass immigration clearance has the meaning given by subsection 172(4).
certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.
character concern has the meaning given by section 5C.
child of a person has a meaning affected by section 5CA.
civil penalty order has the meaning given by subsection 486R(4).
civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.
clearance authority has the meaning given by section 165.
clearance officer has the meaning given by section 165.
coastal area has the same meaning as in the Customs Act 1901.
committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.
Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
crime includes any offence.
criminal history information means information about an individual’s criminal history, and includes information about: any charge against the individual for an offence against a law of the Commonwealth, a State or a Territory, whether or not the individual has been found to have committed the offence; and any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; and any conviction of the individual of such an offence, whether or not the conviction is spent (however described) under: (i) Crimes Act 1914; orPart VIIC of the a law of a State or Territory; and any other result of a proceeding for the prosecution of the individual for such an offence.
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
any charge against the individual for an offence against a law of the Commonwealth, a State or a Territory, whether or not the individual has been found to have committed the offence; and
any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; and
any conviction of the individual of such an offence, whether or not the conviction is spent (however described) under:
(i) Crimes Act 1914; orPart VIIC of the
a law of a State or Territory; and
any other result of a proceeding for the prosecution of the individual for such an offence.
criminal justice visa has the meaning given by section 38.
cruel or inhuman treatment or punishment means an act or omission by which: severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: that is not inconsistent with Article 7 of the Covenant; or arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
that is not inconsistent with Article 7 of the Covenant; or
arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
data base (except in Part 4A) means a discrete body of information stored by means of a computer.
de facto partner has the meaning given by section 5CB.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: that is not inconsistent with Article 7 of the Covenant; or that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
Note: Section 336A defines this term differently for the purposes of Part 4A.
that is not inconsistent with Article 7 of the Covenant; or
that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.
deportation means deportation from Australia.
deportation order means an order for the deportation of a person made under, or continued in force by, this Act.
deportee means a person in respect of whom a deportation order is in force.
detain means:
take into immigration detention; or
keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
detainee means a person detained.
diplomatic or consular representative means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
eligible court means:
Note: This definition extends to persons covered by residence determinations (see section 197AC).
Note: This definition extends to persons covered by residence determinations (see section 197AC).
the Federal Court; or
the Federal Circuit and Family Court of Australia (Division 2); or
a District, County or Local Court; or
a magistrates court; or
any other State or Territory court that is prescribed by the regulations.
enforcement visa has the meaning given by section 38A.
enter includes re-enter.
enter Australia means enter the migration zone.
entered includes re-entered.
entry includes re-entry.
environment detention offence means:
Note: See also section 9A, which concerns offshore resources activities.
(a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or
(b) an offence against Crimes Act 1914 relating to an offence described in paragraph (a).section 6 of the
environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.
environment related activity has the same meaning as in the Sea Installations Act.
evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
excised offshore place means any of the following: the Territory of Christmas Island; the Territory of Ashmore and Cartier Islands; the Territory of Cocos (Keeling) Islands; any other external Territory that is prescribed by the regulations for the purposes of this paragraph; any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph; an Australian sea installation; an Australian resources installation.
the Territory of Christmas Island;
the Territory of Ashmore and Cartier Islands;
the Territory of Cocos (Keeling) Islands;
any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
an Australian sea installation;
an Australian resources installation.
excision time, for an excised offshore place, means:
for the Territory of Christmas Island— on 8 September 2001 by legal time in the Australian Capital Territory; or
for the Territory of Ashmore and Cartier Islands— on 8 September 2001 by legal time in the Australian Capital Territory; or
for the Territory of Cocos (Keeling) Islands—12 on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.
ex-citizen visa has the meaning given by section 35.
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
Federal Court means the Federal Court of Australia.
finally determined: for when an application under this Act is finally determined, see section 11A.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
fisheries detention offence means:
(a) an offence against Fisheries Management Act 1991; orsection 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the
(b) an offence against Torres Strait Fisheries Act 1984; orsection 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the
(c) an offence against Crimes Act 1914 relating to an offence described in paragraph (a) or (b).section 6 of the
fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.
foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).
foreign vessel has the same meaning as in the Maritime Powers Act 2013.
hate crime has the same meaning as in section 114A.3 of the Criminal Code.
health concern non-citizen means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.
health criterion means a prescribed criterion for the visa that: relates to the applicant for the visa, or the members of the family unit of that applicant; and deals with: a prescribed disease; or a prescribed kind of disease; or a prescribed physical or mental condition; or a prescribed kind of physical or mental condition; or a prescribed kind of examination; or a prescribed kind of treatment. holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
relates to the applicant for the visa, or the members of the family unit of that applicant; and
deals with:
a prescribed disease; or
a prescribed kind of disease; or
a prescribed physical or mental condition; or
a prescribed kind of physical or mental condition; or
a prescribed kind of examination; or
a prescribed kind of treatment.
holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
identification test means a test carried out in order to obtain a personal identifier.
identity document, in relation to a member of the crew of a vessel, means:
an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or
a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.
IGIS official (short for Inspector-General of Intelligence and Security official) means:
the Inspector-General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.
immigration cleared has the meaning given by subsection 172(1).
immigration detention means:
being in the company of, and restrained by:
an officer; or
in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
being held by, or on behalf of, an officer:
in a detention centre established under this Act; or
in a prison or remand centre of the Commonwealth, a State or a Territory; or
in a police station or watch house; or
in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
immigration detention facility: see section 251A.
immigration detention facility risk: see section 251A.
incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
independent person means a person (other than an officer or an authorised officer) who: is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and if the non-citizen is a minor—is capable of representing the minor’s best interests.
Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2: This definition extends to persons covered by residence determinations (see section 197AC).
is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and
as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and
if the non-citizen is a minor—is capable of representing the minor’s best interests.
inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.
in immigration clearance has the meaning given by subsection 172(2).
inspector has the meaning given by section 140V.
installation means:
a resources installation; or
a sea installation.
lawful non-citizen has the meaning given by section 13.
lawyer means:
a barrister; or
a solicitor; or
a barrister and solicitor; or
a legal practitioner;
of the High Court or of the Supreme Court of a State or Territory.
leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
maritime crew visa has the meaning given by section 38B.
maritime officer has the same meaning as in the Maritime Powers Act 2013.
master means the person in charge or command of the vessel.
member:
Note: See also section 9A, which concerns offshore resources activities.
(a) in relation to a terrorist organisation—has the same meaning as in Criminal Code; andDivision 102 of the
(b) in relation to a state sponsor of terrorism—has the same meaning as in Criminal Code; andDivision 110 of the
(c) in relation to a prohibited hate group—has the same meaning as in Criminal Code.Division 114A of the
member of the crew means:
in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or
in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.
member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.
member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
migration decision means:
a privative clause decision; or
a purported privative clause decision; or
a non-privative clause decision; or
an ART Act migration decision.
migration law means:
this Act; and
the regulations; and
any legislative instrument made under this Act or the regulations.
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: land that is part of a State or Territory at mean low water; and sea within the limits of both a State or a Territory and a port; and piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port.
land that is part of a State or Territory at mean low water; and
sea within the limits of both a State or a Territory and a port; and
piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
Ministerial intervention power means a power exercisable personally by the Minister under any one or more of the following provisions: subsection 46A(2) (about visa applications by unauthorised maritime arrivals); subsection 46B(2) (about visa applications by transitory persons); subsection 48B(1) (about further applications for a protection visa after refusal or cancellation); paragraph 72(1)(c) (about bridging visas for eligible non-citizens); subsection 91F(1) (about non-citizens for whom there is a safe third country); subsection 91L(1) (about holders of temporary safe haven visas); subsection 137N(1) (about revocation of visa cancellation on the Minister’s initiative); subsection 195A(2) (about grant of visas to detainees); subsection 198AE(1) (about Minister’s power to determine that section 198AD does not apply); subsection 351(1) (about Minister’s power to substitute certain ART decisions); subsection 501J(1) (about Minister’s power to substitute ART protection visa decision).
Note: See also section 9A, which concerns offshore resources activities.
subsection 46A(2) (about visa applications by unauthorised maritime arrivals);
subsection 46B(2) (about visa applications by transitory persons);
subsection 48B(1) (about further applications for a protection visa after refusal or cancellation);
paragraph 72(1)(c) (about bridging visas for eligible non-citizens);
subsection 91F(1) (about non-citizens for whom there is a safe third country);
subsection 91L(1) (about holders of temporary safe haven visas);
subsection 137N(1) (about revocation of visa cancellation on the Minister’s initiative);
subsection 195A(2) (about grant of visas to detainees);
subsection 198AE(1) (about Minister’s power to determine that section 198AD does not apply);
subsection 351(1) (about Minister’s power to substitute certain ART decisions);
subsection 501J(1) (about Minister’s power to substitute ART protection visa decision).
minor means a person who is less than 18 years old.
movement records means information stored in a notified data base.
natural resources means the mineral and other non-living resources of the seabed and its subsoil.
nomination training contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2018.
non-citizen means a person who is not an Australian citizen.
non-disclosable information means information or matter: whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would: prejudice the security, defence or international relations of Australia; or involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
prejudice the security, defence or international relations of Australia; or
involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
non-political crime:
subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
non-privative clause decision has the meaning given by subsection 474(6).
non-refoulement obligations includes, but is not limited to:
non-refoulement obligations that may arise because Australia is a party to:
the Refugees Convention; or
the Covenant; or
the Convention Against Torture; and
any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
notified data base means a data base declared to be a notified data base under section 489.
offence against this Act includes:
(a) an offence against Crimes Act 1914 that relates to an offence against a provision of this Act; andsection 6 of the
(b) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act.
officer means:
an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
a member of the police force of an external Territory; or
a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
offshore resources activity has the meaning given by subsection 9A(5).
old visa means a visa, document, or notation, that: permits a person to travel to Australia; and was issued before 1 September 1994; and has not been cancelled or otherwise stopped being in effect. parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
permits a person to travel to Australia; and
was issued before 1 September 1994; and
has not been cancelled or otherwise stopped being in effect.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.
permanent visa has the meaning given by subsection 30(1).
permitted travel certificate has the meaning given by section 84D.
personal identifier has the meaning given by section 5A.
personal information has the same meaning as in the Privacy Act 1988.
port means:
a proclaimed port; or
a proclaimed airport.
pre-cleared flight means a flight declared under section 17 to be a pre-cleared flight.
prescribed means prescribed by the regulations.
printout means a mechanically or electronically made reproduction of part or all of the movement records.
privative clause decision has the meaning given by subsection 474(2).
proclaimed airport means:
(a) an airport appointed under Customs Act 1901; orsection 15 of the
an airport appointed by the Minister under subsection (5).
proclaimed port means:
(a) a port appointed under Customs Act 1901; orsection 15 of the
a port appointed by the Minister under subsection (5).
prohibited hate group has the same meaning as in Division 114A of the Criminal Code.
prohibited thing: see section 251A.
protected area means an area that is: part of the migration zone; and in, or in an area in the vicinity of, the Protected Zone.
part of the migration zone; and
in, or in an area in the vicinity of, the Protected Zone.
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
protection visa has the meaning given by section 35A.
Note: Section 35A covers the following:
(a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);
other protection visas formerly provided for by subsection 36(1);
safe haven enterprise visas;
(c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);
any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2.
purported privative clause decision has the meaning given by section 5E.
questioning detention means detention under section 192.
receiving country, in relation to a non-citizen, means:
a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
refugee has the meaning given by section 5H.
Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.
Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
refused immigration clearance has the meaning given by subsection 172(3).
regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant seizure power: see section 251B.
relevant workplace law has the meaning given by subsection 245APA(2).
remain in Australia means remain in the migration zone.
removal concern country means a country designated as such by the Minister under subsection 199F(1).
removal pathway direction means a direction given under subsection 199C(1) or (2).
removal pathway non-citizen means:
an unlawful non-citizen:
who is required to be removed from Australia under section 198 as soon as reasonably practicable; or
who would be required to be so removed except for the operation of subsection 197E(5); or
a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa; or
a lawful non-citizen who:
holds a Subclass 050 (Bridging (General)) visa; and
at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia; or
a lawful non-citizen who:
holds a visa prescribed by the regulations for the purposes of this subparagraph; and
at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.
Note 1: For subparagraph (a)(ii), subsection 197E(5) temporarily suspends the duty to remove an unlawful non-citizen under the Minister decides to consider whether to exercise a Ministerial intervention power in relation to the non-citizen. However, the suspension does not prevent other action being taken, or things being done, to facilitate or otherwise prepare for the removal of the non-citizen under section 198 (see subsection 197E(10)).section 198 if
Note 2: The effect of paragraph (c) is that only certain non-citizens holding Subclass 050 (Bridging (General)) visas will be removal pathway non-citizens.
remove means remove from Australia.
removee means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2.
residence determination has the meaning given by subsection 197AB(1).
resources installation means:
a resources industry fixed structure within the meaning of subsection (10); or
a resources industry mobile unit within the meaning of subsection (11).
reviewable migration decision: see section 338.
reviewable protection decision: see section 338A.
score means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2.
sea installation has the same meaning as in the Sea Installations Act.
Sea Installations Act means the Sea Installations Act 1987.
Secretary means the Secretary of the Department.
serious Australian offence means an offence against a law in force in Australia, where: the offence: involves violence against a person; or is a serious drug offence; or involves serious damage to property; or is an offence against section 197A or 197B (offences relating to immigration detention); and the offence is punishable by: imprisonment for life; or imprisonment for a fixed term of not less than 3 years; or imprisonment for a maximum term of not less than 3 years.
the offence:
involves violence against a person; or
is a serious drug offence; or
involves serious damage to property; or
is an offence against section 197A or 197B (offences relating to immigration detention); and
the offence is punishable by:
imprisonment for life; or
imprisonment for a fixed term of not less than 3 years; or
imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where: the offence: involves violence against a person; or is a serious drug offence; or involves serious damage to property; and (b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by: imprisonment for life; or imprisonment for a fixed term of not less than 3 years; or imprisonment for a maximum term of not less than 3 years.
the offence:
involves violence against a person; or
is a serious drug offence; or
involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
imprisonment for life; or
imprisonment for a fixed term of not less than 3 years; or
imprisonment for a maximum term of not less than 3 years.
significant harm means harm of a kind mentioned in subsection 36(2A).
special category visa has the meaning given by section 32.
special purpose visa has the meaning given by section 33.
spouse has the meaning given by section 5F.
state sponsor of terrorism has the same meaning as in Division 110 of the Criminal Code.
student visa has the meaning given by the regulations.
substantive visa means a visa other than: a bridging visa; or a criminal justice visa; or an enforcement visa.
a bridging visa; or
a criminal justice visa; or
an enforcement visa.
tax file number has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
temporary visa has the meaning given by subsection 30(2).
Territory means:
an internal Territory; or
an external Territory to which this Act extends.
terrorist organisation has the same meaning as in Division 102 of the Criminal Code.
ticket includes a travel document in respect of the conveyance of a person from one place to another place.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: for the purpose of obtaining from the person or from a third person information or a confession; or for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or for the purpose of intimidating or coercing the person or a third person; or for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or for any reason based on discrimination that is inconsistent with the Articles of the Covenant; but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
for the purpose of obtaining from the person or from a third person information or a confession; or
for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
for the purpose of intimidating or coercing the person or a third person; or
for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
transitory person means:
a person who was taken to another country under repealed section 198A; or
a person who was taken to a regional processing country under section 198AD; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Maritime Powers Act 2013; orDivision 7 or 8 of Part 3 of the
a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
disembarked in that other country; or
the child of a transitory person mentioned in paragraph (aa) or (b), if:
the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and
the child was not an Australian citizen at the time of birth; or
the child of a transitory person mentioned in paragraph (aa) or (b), if:
the child was born in the migration zone; and
the child was not an Australian citizen at the time of birth.
Note 1: For who is a child, see section 5CA.
Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.
Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
unauthorised maritime arrival has the meaning given by section 5AA.
unlawful non-citizen has the meaning given by section 14.
vessel includes an aircraft or an installation.
vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.
visa has the meaning given by section 29 and includes an old visa.
visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
visa application charge means the charge payable under section 45A.
visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.
visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.
visa period means the period: beginning when the visa is granted; and ending: in the case of a visa other than a bridging visa—when the visa ceases to be in effect otherwise than under section 84E; or in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3) or section 84E.
beginning when the visa is granted; and
ending:
in the case of a visa other than a bridging visa—when the visa ceases to be in effect otherwise than under section 84E; or
in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3) or section 84E.
Note: See subsection 68(6) for when certain bridging visas are to be taken to have ceased to be in effect otherwise than under subsection 82(3).
visa pre-application process charge means charge imposed by the Migration (Visa Pre-application Process) Charge Act 2023.
weapon or escape aid: see section 252.
well-founded fear of persecution has the meaning given by section 5J.
work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.
working day means any day that is not a Saturday, a Sunday or a public holiday in that place.
work-related condition means a condition: prohibiting the holder of a visa from working in Australia; or restricting the work that the holder of a visa may do in Australia.
prohibiting the holder of a visa from working in Australia; or
restricting the work that the holder of a visa may do in Australia.
work-related offence means:
an offence against Subdivision C or E of Division 12 of Part 2; or
(b) an offence against Crimes Act 1914 that relates to an offence against one of those Subdivisions; orsection 6 of the
(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against one of those Subdivisions.
work-related provision means a civil penalty provision in Subdivision C, E or F of Division 12 of Part 2.
(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published in the Gazette; but
without affecting the obligation of the Minister to cause a notice to be so published:
the authorisation takes effect when it is given; and
the validity of the authorisation is not affected if such a notice is not published.
(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.
For the purposes of this Act, a person has functional English at a particular time if:
the person passes a test that:
is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
the person provides the Minister with prescribed evidence of the person’s English language proficiency.
Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.
Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.
(5) The Minister may, by notice published in the Gazette:
appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.
For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:
the installation shall be deemed to have entered Australia at the time when it becomes so attached;
any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:
the installation shall be deemed to have entered Australia at the time that it becomes so installed; and
any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.
A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:
is not able to move or be moved as an entity from one place to another; and
is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
A reference in this Act to a resources industry mobile unit shall be read as a reference to:
a vessel that is used or is to be used wholly or principally in:
exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or
a structure (not being a vessel) that:
is able to float or be floated;
is able to move or be moved as an entity from one place to another; and
is used or is to be used off-shore wholly or principally in:
(A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).
A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.
The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
transporting persons or goods to or from a resources installation; or
manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
A resources installation shall be taken to be attached to the Australian seabed if:
the installation:
is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
the installation:
is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
is in that adjacent area at that time; and
has been in a particular locality:
that is circular and has a radius of 20 nautical miles; and
the whole or part of which is in that adjacent area;
for:
a continuous period, of at least 30 days, that immediately precedes that time; or
one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
Where a sea installation, being a ship or an aircraft:
is brought into physical contact with a part of the seabed in an adjacent area; or
is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
is in that coastal area at that time; and
has been in a particular locality:
that is circular and has a radius of 20 nautical miles; and
the whole or part of which is in that coastal area;
for:
a continuous period, of at least 30 days, that immediately precedes that time; or
one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
Where a sea installation, being a ship or an aircraft:
is brought into physical contact with a part of the seabed in a coastal area; or
is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
The purposes of this Act include:
the purposes of a regulation or other instrument under this Act; and
the purposes of any administrative process that occurs in relation to:
this Act; or
a regulation or instrument under this Act.
To remove doubt, the Minister does not have any responsibility or obligation to:
specify, or assist in specifying, any particulars of the non-citizen’s claim; or
establish, or assist in establishing, the claim.
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
the person entered Australia by sea:
at an excised offshore place at any time after the excision time for that place; or
at any other place at any time on or after the commencement of this section; and
the person became an unlawful non-citizen because of that entry; and
the person is not an excluded maritime arrival.
(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
the person is born in the migration zone; and
a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
the person is not an Australian citizen at the time of birth.
Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.
Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens).
Note 4: For when a person is an Australian citizen at the time of his or her birth, see Australian Citizenship Act 2007.section 12 of the
Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
the person is born in a regional processing country; and
a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Entered Australia by sea
(2) A person entered Australia by sea if:
the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); orsection 245F (as in force before the commencement of section 69 of the
(ba) the person entered the migration zone as a result of the exercise of powers under Maritime Powers Act 2013; orDivision 7 or 8 of Part 3 of the
the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
is a non-citizen who:
holds and produces a passport that is in force; and
is ordinarily resident on Norfolk Island; or
is included in a prescribed class of persons.
Definitions
In this section:
aircraft has the same meaning as in section 245A.
ship has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013).
Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.
In this Act:
personal identifier means any of the following (including any of the following in digital form): fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies); a measurement of a person’s height and weight; a photograph or other image of a person’s face; an audio or a video recording of a person (other than a video recording under section 261AJ); an iris scan; a person’s signature; (g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure Crimes Act 1914.within the meaning of section 23WA of the
fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
a measurement of a person’s height and weight;
a photograph or other image of a person’s face;
Note: See section 5BA.
an audio or a video recording of a person (other than a video recording under section 261AJ);
an iris scan;
a person’s signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure Crimes Act 1914.within the meaning of section 23WA of the
Before the Governor-General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure Crimes Act 1914; andwithin the meaning of section 23WA of the
the identifier is an image of, or a measurement or recording of, an external part of the body; and
obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
The purposes are:
to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
to assist in identifying, in the future, any such person; and
to improve the integrity of entry programs; and
to improve passenger processing at Australia’s border; and
to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and
to improve the procedures for determining visa applications; and
to improve the procedures for determining claims from people seeking protection as refugees; and
to assist in determining whether a person is an unlawful non-citizen or a lawful non-citizen; and
to enhance the Department’s ability to identify non-citizens who have a criminal history or who are of character concern; and
to assist in identifying persons who may be a security concern to Australia or a foreign country; and
to combat document and identity fraud in immigration matters; and
to detect forum shopping by applicants for visas; and
to ascertain whether:
an applicant for a protection visa; or
an unauthorised maritime arrival who makes a claim for protection as a refugee; or
an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
to complement anti-people smuggling measures; and
to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.
A person is taken, for the purposes of section 257A, not to have provided a personal identifier if:
the personal identifier that is provided is unusable; or
the Minister, an authorised officer or an officer is not satisfied:
about the integrity or quality of the personal identifier that is provided; or
about the procedure followed to obtain the personal identifier.
A reference in the migration law to a photograph or other image of a person’s face includes a reference to a photograph or other image of:
the person’s face and all or part of the person’s neck; or
the person’s face and neck and all or part of the person’s shoulders.
Subsections (2) and (3) apply if:
a provision of the migration law uses the expression “authorised system”; and
the provision requires a person to provide to an authorised system a photograph or other image of the person’s face; and
for the purposes of that requirement, the person submits to the authorised system collecting:
a photograph or other image of the person’s face; or
a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face.
For the purposes of the migration law, if the authorised system collects a photograph or other image of the person’s face, the person is taken to provide the photograph or other image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).
For the purposes of the migration law, if:
the authorised system collects a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face; and
(b) the authorised system derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the authorised system collects;
the person is taken to provide the derived image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).
(4) When used in this section (other than in paragraph (1)(a) of this section), authorised system has the same meaning as when used in the provision mentioned in paragraph (1)(a).
Subsection (3) applies if:
the migration law requires a person to provide a photograph or other image of the person’s face to the Minister; and
for the purposes of that requirement:
(i) the person provides to the Minister (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and
(ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.
Subsection (3) also applies if:
a provision of the migration law uses the expression “authorised officer”; and
the provision requires a person to provide a photograph or other image of the person’s face to an authorised officer; and
for the purposes of that requirement:
(i) the person provides to an authorised officer (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and
(ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.
For the purposes of the migration law, the person is taken to provide the derived image to the recipient for the purposes of the requirement mentioned in paragraph (1)(a) or (2)(b).
(4) When used in this section (other than in paragraph (2)(a) of this section), authorised officer has the same meaning as when used in the provision mentioned in paragraph (2)(a).
(1) For the purposes of this Act, a non-citizen is of character concern if:
the non-citizen has a substantial criminal record (as defined by subsection (2)); or
the non-citizen has been convicted of an offence that was committed:
while the non-citizen was in immigration detention; or
during an escape by the non-citizen from immigration detention; or
after the non-citizen escaped from immigration detention but before the non-citizen was taken into immigration detention again; or
the non-citizen has been convicted of an offence against section 197A; or
the Minister reasonably suspects:
that the non-citizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
that the group, organisation or person has been or is involved in criminal conduct; or
subsection (1A) applies to the non-citizen (spreading hatred and extremism); or
the Minister reasonably suspects that the non-citizen has been or is involved in conduct constituting one or more of the following:
an offence under one or more of sections 233A to 234A (people smuggling);
an offence of trafficking in persons;
the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the non-citizen, or another person, has been convicted of an offence constituted by the conduct; or
having regard to either or both of the following:
the non-citizen’s past and present criminal conduct;
the non-citizen’s past and present general conduct;
the non-citizen is not of good character; or
in the event that the non-citizen were allowed to enter or to remain in Australia, there is a risk that the non-citizen might:
engage in criminal conduct in Australia; or
harass, molest, intimidate or stalk another person in Australia; or
vilify a segment of the Australian community; or
incite discord in the Australian community or in a segment of that community; or
represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
a court in Australia or a foreign country has:
convicted the non-citizen of one or more sexually based offences involving a child; or
found the non-citizen guilty of such an offence, or found a charge against the non-citizen proved for such an offence, even if the non-citizen was discharged without a conviction; or
the non-citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
the crime of genocide;
a crime against humanity;
a war crime;
a crime involving torture or slavery;
a crime that is otherwise of serious international concern; or
(g) the non-citizen has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (Australian Security Intelligence Organisation Act 1979); orwithin the meaning of section 4 of the
an Interpol notice in relation to the non-citizen, from which it is reasonable to infer that the non-citizen would present a risk to the Australian community or a segment of that community, is in force.
Spreading hatred and extremism
This subsection applies to a non-citizen if the Minister reasonably suspects that:
both of the following apply:
the non-citizen is, or has been, a member of an organisation;
at any time the non-citizen was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or
all of the following apply:
the non-citizen has, or has had, an association with an organisation;
at any time during the non-citizen’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;
the non-citizen intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or
the non-citizen has been or is involved in conduct constituting a hate crime (whether or not the non-citizen, or another person, has been convicted of an offence constituted by the conduct); or
both of the following apply:
the non-citizen has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the non-citizen were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or
both of the following apply:
the non-citizen has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the non-citizen were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.
Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).
Note 2: See also subsection 5(1) for definitions of terms used in this subsection.
Limbs do not limit each other
(1B) None of the limbs of subsection (1) or (1A) are intended to limit or otherwise affect each other.
Minister not required to determine whether membership or association is ongoing
The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (1A)(a) or (b).
Substantial criminal record
(2) For the purposes of subsection (1), a non-citizen has a substantial criminal record if:
the non-citizen has been sentenced to death; or
the non-citizen has been sentenced to imprisonment for life; or
the non-citizen has been sentenced to a term of imprisonment of 12 months or more; or
the non-citizen has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
the non-citizen has:
been found by a court to not be fit to plead, in relation to an offence; and
the court has nonetheless found that on the evidence available the non-citizen committed the offence; and
as a result, the non-citizen has been detained in a facility or institution.
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
they have a mutual commitment to a shared life to the exclusion of all others; and
the relationship between them is genuine and continuing; and
they:
live together; or
do not live separately and apart on a permanent basis; and
they are not related by family (see subsection (4)).
The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
one is the child (including an adopted child) of the other; or
one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The Minister, Secretary or Australian Border Force Commissioner may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.
Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
a failure to exercise jurisdiction; or
an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
they are married to each other under a marriage that is valid for the purposes of this Act; and
they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
the relationship between them is genuine and continuing; and
they:
live together; or
do not live separately and apart on a permanent basis.
The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
Subsection (1) does not apply if the Minister has serious reasons for considering that:
the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
the person committed a serious non-political crime before entering Australia; or
the person has been guilty of acts contrary to the purposes and principles of the United Nations.
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
conflict with a characteristic that is fundamental to the person’s identity or conscience; or
conceal an innate or immutable characteristic of the person; or
without limiting paragraph (a) or (b), require the person to do any of the following:
alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
conceal his or her true race, ethnicity, nationality or country of origin;
alter his or her political beliefs or conceal his or her true political beliefs;
conceal a physical, psychological or intellectual disability;
enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
the persecution must involve serious harm to the person; and
the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
a threat to the person’s life or liberty;
significant physical harassment of the person;
significant physical ill-treatment of the person;
significant economic hardship that threatens the person’s capacity to subsist;
denial of access to basic services, where the denial threatens the person’s capacity to subsist;
denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
disregard any fear of persecution, or any persecution, that:
the first person has ever experienced; or
any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
a characteristic is shared by each member of the group; and
the person shares, or is perceived as sharing, the characteristic; and
any of the following apply:
the characteristic is an innate or immutable characteristic;
the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
the characteristic distinguishes the group from society; and
the characteristic is not a fear of persecution.
For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
protection against persecution could be provided to the person by:
the relevant State; or
a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
the person can access the protection; and
the protection is durable; and
in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
a serious Australian offence; or
a serious foreign offence.
To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:
(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or
that this Act does not extend to parts of Australia outside the migration zone; or
that this Act does not apply to persons in those parts.
Note: See also subsection 9A(3), which deals with when a person is taken to be in Australia, to travel to Australia, to enter Australia or to leave Australia. Section 9A concerns offshore resources activities.
(1) In this section, prescribed Territory means Norfolk Island, the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
This Act extends to a prescribed Territory.
Subject to this Act, a prescribed Territory:
shall be deemed to be part of Australia for the purposes of this Act; and
shall be deemed not to be a place outside Australia.
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.
For the purposes of this Act, a resources installation that:
becomes attached to the Australian seabed after the commencement of this subsection; or
at the commencement of this subsection, is attached to the Australian seabed;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
For the purposes of this Act, a sea installation that:
becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or
at the commencement of this subsection, is installed in an adjacent area or in a coastal area;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or
after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.
Migration zone etc.
For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in relation to that area.
Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum.
Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity.
Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity.
To avoid doubt, a person may be taken to be in the migration zone under subsection (1):
whether or not the person’s participation in, or support of, an offshore resources activity in the area concerned has started, is continuing or has concluded; and
whether or not the offshore resources activity concerned has started, is continuing or has concluded.
For the purposes of this Act:
a person is taken to be in Australia while he or she is taken to be in the migration zone because of subsection (1); and
a person is taken to travel to Australia if the person travels to an area in which the person is taken to be in the migration zone because of subsection (1); and
a person is taken to enter Australia when the person enters an area in which the person is taken to be in the migration zone because of subsection (1); and
subject to section 80—a person is taken to leave Australia when the person leaves an area in which the person is taken to be in the migration zone because of subsection (1).
Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person:
is in the migration zone or is taken to be in the migration zone; or
is in Australia or is taken to be in Australia; or
travels to Australia or is taken to travel to Australia; or
enters Australia or is taken to enter Australia; or
leaves Australia or is taken to leave Australia.
Meaning of offshore resources activity
In this section:
offshore resources activity, in relation to an area, means:
(a) a regulated operation (Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); orwithin the meaning of section 7 of the
(b) an activity performed under a licence or a special purpose consent (both Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); orwithin the meaning of section 4 of the
an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:
under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and
within the area, as determined by the Minister under subsection (6).
(6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5).
(7) A determination made under subsection (6) is a legislative instrument, but Legislation Act 2003 does not apply to the determination.section 42 (disallowance) of the
To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
is on an Australian resources installation in the area; or
is otherwise in the area to participate in, or support, the activity.
A child who:
was born in the migration zone; and
was a non-citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
Where:
2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
on entering Australia, one of those persons is in possession of evidence of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.
(1) An application under this Act is finally determined when:
a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the ART under Part 5; or
a decision that has been made in respect of the application was subject to some form of review by application to the ART under Part 5 but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
(2) If a review of a decision that has been made in respect of an application under this Act is instituted by application to the ART under finally determined when a decision on review in respect of the application is taken to have been made as provided by the following provisions:Part 5 as prescribed, the application is
if the decision on review is made under section 105 of the ART Act or paragraph 368C(3)(b) or subsection 368C(5) of this Act—section 368 of this Act;
if the application for review is dismissed under the ART Act and an application for reinstatement cannot be made under section 368C of this Act—section 368B of this Act.
However, subsection (2) does not apply in relation to a decision of the ART to remit a reviewable migration decision or a reviewable protection decision under subsection 349(2).
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Marriage Act 1961 applies as if section 88E of that Act were omitted.Part VA of the
A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.
A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.
To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.
The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre-cleared flight for the purposes of this Act.
The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre-cleared flights for the purposes of this Act.
A particular flight to which a declaration under subsection (1) or (2) applies is not a pre-cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.
(1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non-citizen, the Minister may, by notice in writing served on the first person, require the first person:
to give to the Minister, within the period and in the manner specified in the notice, any such information; or
to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or
to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.
(2) A notice under subsection (1) must set out the effects of Criminal Code.section 21 of this Act and sections 137.1 and 137.2 of the
The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).
A person must not refuse or fail to comply with a notice under subsection 18(1).
Subsection (1) does not apply:
to the extent that the person is not capable of complying with the notice; or
if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
The following are 2 of the reasonable excuses for refusing or failing to comply with a notice:
the person whom the Minister had reason to believe was an unlawful non-citizen was not an unlawful non-citizen at the time the notice was given;
the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty: Imprisonment for 6 months.
A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:
giving the information or producing the document or copy; or
any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;
is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:
an offence against, or arising out of, this Division; or
(d) an offence against Criminal Code that relates to this Division.section 137.1 or 137.2 of the
The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.
The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).
The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.
The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
The certified copy must be received in all courts and tribunals as evidence as if it were the original.
Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.
Subdivision A—General provisions about visas
In this Division:
specified period includes the period until a specified date.
Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
travel to and enter Australia;
remain in Australia.
Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B).
Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
travel to and enter Australia during a prescribed or specified period; and
if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.
Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
travel to and enter Australia during a prescribed or specified period; and
if, and only if, the holder travels to and enters during that period:
remain in it during a prescribed or specified period or indefinitely; and
if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period.
Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.
A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
during a specified period; or
until a specified event happens; or
while the holder has a specified status.
There are to be prescribed classes of visas.
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
As well as the prescribed classes, there are the classes provided for by the following provisions:
section 32 (special category visas);
section 33 (special purpose visas);
section 34 (absorbed person visas);
section 35 (ex-citizen visas);
subsection 35A(2) (permanent protection visas);
subsection 35A(3) (temporary protection visas);
subsection 35A(3A) (safe haven enterprise visas);
section 37 (bridging visas);
section 37A (temporary safe haven visas);
section 38 (criminal justice visas);
section 38A (enforcement visas);
section 38B (maritime crew visas).
The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
To avoid doubt, subsection (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:
special category visas (see section 32);
permanent protection visas (see subsection 35A(2));
temporary protection visas (see subsection 35A(3));
safe haven enterprise visas (see subsection 35A(3A));
bridging visas (see section 37);
temporary safe haven visas (see section 37A);
maritime crew visas (see section 38B).
Note 1: An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection 46AA(2)).
Note 2: If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection 46AA(4)).
The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
There is a class of temporary visas to be known as special category visas.
A criterion for a special category visa is that the Minister is satisfied the applicant is:
a non-citizen:
who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
is neither a behaviour concern non-citizen nor a health concern non-citizen; or
a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:
the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.
Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if:
the non-citizen:
has a prescribed status; or
is a member of a class of persons that has a prescribed status; or
the Minister declares, in writing, that:
the non-citizen is taken to have been granted a special purpose visa; or
persons of a class, of which the non-citizen is a member, are taken to have been granted special purpose visas.
A non-citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non-citizen or a class of persons of which the non-citizen is a member.
A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:
if paragraph (2)(a) applies:
the day the non-citizen commences to have the prescribed status;
the day the class of persons, of which the non-citizen is a member, commences to have the prescribed status;
the day the non-citizen commences to be a member of the class of persons that has a prescribed status;
if paragraph (2)(b) applies:
the day the declaration is made;
if a day is specified in the declaration as the day the visa comes into effect—that day;
the day the non-citizen commences to be a member of the class of persons specified in the declaration.
A special purpose visa ceases to be in effect at the earliest of the following times:
if paragraph (2)(a) applies:
if the non-citizen ceases to have a prescribed status—the end of the day on which the non-citizen so ceases; or
if the non-citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non-citizen so ceases; or
if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect;
if paragraph (2)(b) applies:
if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or
if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or
if the non-citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non-citizen so ceases; or
if the declaration is revoked—the end of the day of the revocation; or
if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect.
For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:
if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or
if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made.
If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the contents of the declaration; and
sets out the Minister’s reasons for the declaration.
A statement under subsection (6) is not to include:
the name of the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
Section 43 and Subdivisions AA, AB, AC (other than section 68), AG, AH, C, D, E, F, FA, FB and H do not apply in relation to special purpose visas.
There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
A non-citizen in the migration zone who:
on 2 April 1984 was in Australia; and
before that date, had ceased to be an immigrant; and
on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to absorbed person visas.
There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas.
A person who:
before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and
did not leave Australia after ceasing to be a citizen and before that date;
is taken to have been granted an ex-citizen visa on that date.
A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.
Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to ex-citizen visas.
(1) A protection visa is a visa of a class provided for by this section.
There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
There is a class of temporary visas to be known as safe haven enterprise visas.
The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.
Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.
Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.
A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.Part 1 of Schedule 2 to the
The criteria for a class of protection visas are:
the criteria set out in section 36; and
any other relevant criteria prescribed by regulation for the purposes of section 31.
Note: See also Subdivision AL.
An applicant for a protection visa must satisfy:
both of the criteria in subsections (1B) and (1C); and
at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (Australian Security Intelligence Organisation Act 1979).within the meaning of section 4 of the
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
is a danger to Australia’s security; or
having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
A criterion for a protection visa is that the applicant for the visa is:
a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
is mentioned in paragraph (a); and
holds a protection visa of the same class as that applied for by the applicant; or
a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
is mentioned in paragraph (aa); and
holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
the non-citizen will be arbitrarily deprived of his or her life; or
the death penalty will be carried out on the non-citizen; or
the non-citizen will be subjected to torture; or
the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
the non-citizen will be subjected to degrading treatment or punishment.
However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa
A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
the Minister has serious reasons for considering that:
the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
the non-citizen committed a serious non-political crime before entering Australia; or
the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
the Minister considers, on reasonable grounds, that:
the non-citizen is a danger to Australia’s security; or
the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
However, subsection (3) does not apply in relation to a country in respect of which:
the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
the country will return the non-citizen to another country; and
the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Also, subsection (3) does not apply in relation to a country if:
the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
the non-citizen:
satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).
The Minister must do so:
before deciding whether to grant or refuse to grant the visa; and
before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and
before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and
without regard to subsections 36(2C) and (3).
Subsection (1) does not apply if:
(a) the non-citizen (the family applicant) is a member of the same family unit as another non-citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and
the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and
the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.
Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.
(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.
(3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.
(4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.
(5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.
The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
In this section:
country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.
There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas.
Note: Division 4A deals with these visas.
There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas.
Subject to subsection 43(1B), a maritime crew visa held by a non-citizen does not grant the non-citizen permission to travel to or enter Australia by air.
Note: However, a non-citizen might also hold another class of visa that allows the non-citizen to travel to and enter Australia by air.
The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.
If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect:
if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or
if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made.
Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).
If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration.
Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).
Despite subsection (5), any detention of the non-citizen that occurred during any part of the period:
beginning when the Minister made the declaration; and
ending at the time of the revocation of the declaration;
is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(1) In spite of Legislation Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).section 14 of the
For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
Despite any legislative instrument made for the purposes of the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.section 39,
Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).
The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.
(4) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.
In this section:
Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.
Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.
Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations 1994.
Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations 1994.
The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:
is outside Australia; or
is in immigration clearance; or
has been refused immigration clearance and has not subsequently been immigration cleared; or
is in the migration zone and, on last entering Australia:
was immigration cleared; or
bypassed immigration clearance and had not subsequently been immigration cleared.
Without limiting subsection (1), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A.
The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about conditions
Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
any work; or
work other than specified work; or
work of a specified kind.
The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
Conditions about offshore resources activity
In addition to any restrictions applying because of regulations made for the purposes of paragraph (2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is:
a permanent visa; or
a visa prescribed by the regulations for the purposes of this subsection.
Note: For offshore resources activity, see subsection 9A(5).
To avoid doubt, for the purposes of subsection (2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
is on an Australian resources installation in the area; or
is, under section 9A, otherwise in the area to participate in, or support, the activity.
Additional conditions
In addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.
Note: A maritime crew visa is generally permission to travel to Australia only by sea (see section 38B).
Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.
Subsection (1) does not apply to a non-citizen in relation to travel to Australia:
if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
if:
(i) the non-citizen is brought to the migration zone under subsection 245F(9) of this Act or under Maritime Powers Act 2013; andDivision 7 or 8 of Part 3 of the
the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or
if the non-citizen is brought to Australia under section 198B; or
if:
an attempt to remove the non-citizen under section 198 to another country was made but the removal was not completed; and
the non-citizen travels to Australia as a direct result of the removal not being completed; and
the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or
if:
the non-citizen has been removed under section 198 to another country but the non-citizen does not enter the other country; and
the non-citizen travels to Australia as a direct result of not entering the other country; and
the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or
if:
the non-citizen has been removed under section 198; and
before the removal the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (the Minister had given an undertaking to the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in relation to the non-citizen; andDivision 2) had made an order in relation to the non-citizen, or
the non-citizen’s travel to Australia is required in order to give effect to the order or undertaking; and
the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and
the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.
The regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa that is in effect.
Nothing in subsection (2A) or (3) is to be taken to affect the non-citizen’s status in the migration zone as an unlawful non-citizen.
Note: Section 189 provides that an unlawful non-citizen in the migration zone must be detained.
Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
at a port; or
on a pre-cleared flight; or
if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
in a way authorised in writing by an authorised officer.
Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:
at a proclaimed port; or
if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or
in a way authorised by an authorised officer.
Despite subsections 38B(1) and (2):
the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and
the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air.
For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.
This section does not apply to:
the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign vessel as a result of the exercise of powers under Maritime Powers Act 2013 in relation to a fisheries detention offence; orsection 69 of the
an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft:
(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or
(iii) exercising powers under Maritime Powers Act 2013 in relation to the vessel;section 69 of the
because the environment officer, maritime officer or person in command had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.
Note: Subsection 33(10) also disapplies this section.
In subsection (3):
Australian resident has the same meaning as in the Fisheries Management Act 1991.
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Subdivision AA—Applications for visas
This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.
This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.
Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
Situation in which conversion regulation can be made
This section applies if:
(a) a person has made a valid application (a pre-conversion application) for a visa (a pre-conversion visa) of a particular class; and
the pre-conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application; and
since the application was made, one or more of the following events has occurred:
the requirements for making a valid application for that class of visa change;
the criteria for the grant of that class of visa change;
that class of visa ceases to exist; and
had the application been made after the event (or events) occurred, because of that event (or those events):
the application would not have been valid; or
that class of visa could not have been granted to the person.
To avoid doubt, under subsection (1) this section may apply in relation to:
classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
classes of applicants, including applicants having a particular status; and
applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non-citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre-conversion application for the pre-conversion visa:
is taken not to be, and never to have been, a valid application for the pre-conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre-conversion visa.
Note: This section may apply in relation to a pre-conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre-conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
is taken not to have been made on 1 August 2014 (or ever); and
is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
Without limiting subsection (3), a conversion regulation may:
prescribe a class or classes of pre-conversion visas; and
prescribe a class of applicants for pre-conversion visas; and
(c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre-conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
If an amount has been paid as the first instalment of the visa application charge for a pre-conversion application, then, at and after the conversion time in relation to the application:
that payment is taken not to have been paid as the first instalment of the visa application charge for the pre-conversion application; and
that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application; and
in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person held a bridging visa because the pre-conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person had made an application for a bridging visa because of the pre-conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
the bridging visa application is taken to have been applied for because of the converted application; and
the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
To avoid doubt:
(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).
A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.
Note: The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997.
The amount prescribed in relation to an application may be nil.
(3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year.
Note: The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).
If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.
The regulations may:
provide that visa application charge may be payable in instalments; and
specify how those instalments are to be calculated; and
specify when instalments are payable.
The regulations may also:
make provision for and in relation to:
the recovery of visa application charge in relation to visa applications; or
the way, including the currency, in which visa application charge is to be paid; or
working out how much visa application charge is to be paid; or
the time when visa application charge is to be paid; or
the persons who may be paid visa application charge on behalf of the Commonwealth; or
make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or
make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or
make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.
Validity—general
Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
it is for a visa of a class specified in the application; and
it satisfies the criteria and requirements prescribed under this section; and
subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
any fees payable in respect of it under the regulations have been paid; and
it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
section 48 (visa refused or cancelled earlier);
section 48A (protection visa refused or cancelled earlier);
section 161 (criminal justice visa holders);
section 164D (enforcement visa holders);
section 195 (detainee applying out of time);
section 501E (earlier refusal or cancellation on character grounds); and
it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
section 46AA (visa applications, and the grant of visas, for some Act-based visas);
section 46A (visa applications by unauthorised maritime arrivals);
section 46B (visa applications by transitory persons);
section 91E or 91G (CPA and safe third countries);
section 91K (temporary safe haven visas);
section 199G (visa applications by certain nationals of a removal concern country).
Subject to subsection (2), an application for a visa is invalid if:
the applicant is in the migration zone; and
since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
the Minister has not waived that condition under subsection 41(2A); and
the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
Subject to subsection (2A), an application for a visa is valid if:
it is an application for a visa of a class prescribed for the purposes of this subsection; and
under the regulations, the application is taken to have been validly made.
Provision of personal identifiers
An application for a visa is invalid if:
the Minister has not waived the operation of this subsection in relation to the application for the visa; and
the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
Without limiting subsection (3), the regulations may also prescribe:
the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
how an application for a visa of a specified class must be made; and
where an application for a visa of a specified class must be made; and
where an applicant must be when an application for a visa of a specified class is made.
Without limiting subsection (3) and paragraph (4)(a), the regulations may prescribe, as a circumstance that must exist for an application for a visa of a specified class to be a valid application, that the applicant was selected in accordance with the applicable visa pre-application process conducted under subsection 46C(1).
However, the regulations cannot prescribe criteria mentioned in subsection (4A) for any of the following visas:
protection visas;
temporary safe haven visas;
visas classified by the regulations as:
Refugee and Humanitarian (Class XB) visas; or
Temporary (Humanitarian Concern) (Class UO) visas; or
Resolution of Status (Class CD) visas.
To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
special category visas (see section 32);
permanent protection visas (see subsection 35A(2));
temporary protection visas (see subsection 35A(3));
safe haven enterprise visas (see subsection 35A(3A));
bridging visas (see section 37);
temporary safe haven visas (see section 37A);
maritime crew visas (see section 38B).
Visa classes covered by this section
The following classes of visas are covered by this section:
special category visas (see section 32);
permanent protection visas (see subsection 35A(2));
temporary protection visas (see subsection 35A(3));
safe haven enterprise visas (see subsection 35A(3A));
bridging visas (see section 37);
temporary safe haven visas (see section 37A);
maritime crew visas (see section 38B).
Applications invalid if no prescribed criteria
An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied:
there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;
there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted.
Note: This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph (a) or (b) (or both) for a visa.
The criteria mentioned in subsection (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas.
Example: The criteria mentioned in subsection (2) do not include the criteria set out in regulation 2.07 of the Migration Regulations 1994 (application for visa—general).
Criteria in the Act and the regulations
If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section:
an application for the visa is invalid unless the application satisfies both:
any applicable criteria under this Act that relate to applications for visas of that class; and
any applicable criteria prescribed by regulation that relate to applications for visas of that class; and
the visa must not be granted unless the application satisfies both:
any applicable criteria under this Act that relate to the grant of visas of that class; and
any applicable criteria prescribed by regulation that relate to the grant of visas of that class.
Note: For visa applications generally, see section 46. For the grant of a visa generally, see section 65.
An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
is in Australia; and
either:
is an unlawful non-citizen; or
holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
Subsection (1) does not apply in relation to an application for a visa if:
either:
the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and
the application is for a visa prescribed for the purposes of this paragraph; and
the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
The power under subsection (2) or (2C) may only be exercised by the Minister personally.
If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
sets out the determination, the determination as varied or the instrument of revocation; and
sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
A statement under subsection (4) must not include:
the name of the unauthorised maritime arrival; or
any information that may identify the unauthorised maritime arrival; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
An application for a visa is not a valid application if it is made by a transitory person who:
is in Australia; and
either:
is an unlawful non-citizen; or
holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
The period specified in a determination may be different for different classes of transitory persons.
The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
The power under subsection (2) or (2C) may only be exercised by the Minister personally.
If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
sets out the determination, the determination as varied or the instrument of revocation; and
sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
A statement under subsection (4) must not include:
the name of the transitory person; or
any information that may identify the transitory person; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.
The Minister may arrange for a visa pre-application process to be conducted in relation to one or more visas if regulations are in force prescribing criteria mentioned in subsection 46(4A) for those visas.
Note: Criteria mentioned in subsection 46(4A) cannot be prescribed for visas mentioned in subsection 46(4B).
Characteristics of a visa pre-application process
A visa pre-application process must involve:
the registration of persons as registered participants in the process, so long as those persons meet the eligibility requirements set out in a subsection (14) determination that relates to the process; and
registered participants being selected at random.
Note 1: This means that:
there will be a pool of registered participants in a visa pre-application process; and
registered participants will be selected at random from that pool.
Note 2: See also subsection (21), which deals with eligibility requirements.
A visa pre-application process must involve:
(a) a finite period (the finite registration open period) during which the process is to be open for registration; or
(b) an indefinite period (the indefinite registration open period) during which the process is to be open for registration.
If a visa pre-application process involves a finite registration open period, this Act does not prevent the finite registration open period from being extended for a further period or further periods.
A visa pre-application process must involve:
(a) a finite period (the finite selection open period) during which the selection of registered participants may take place; or
(b) an indefinite period (the indefinite selection open period) during which the selection of registered participants may take place.
If a visa pre-application process involves a finite selection open period:
this Act does not prevent the finite selection open period from being extended for a further period or further periods; and
the selection of registered participants may take place on one or more occasions during the finite selection open period.
If a visa pre-application process involves an indefinite selection open period, the selection of registered participants may take place on one or more occasions during the indefinite selection open period.
If:
a person is a registered participant in a visa pre-application process; and
the person is selected in accordance with the process;
the person ceases to be a registered participant in the process.
If:
a visa pre-application process relates to one or more visas; and
the visa pre-application process involves a finite registration open period; and
the finite registration open period ends;
this Act does not prevent a fresh visa pre-application process from being conducted in relation to any or all of those visas.
This Act does not prevent 2 or more visa pre-application processes from being conducted in relation to one or more visas.
Note: This means that visa pre-application processes can be conducted concurrently.
Use of a computer program
A visa pre-application process, or a part of a visa pre-application process, may be conducted by the use of a computer program under the Minister’s control.
Subsection (11) does not limit subsection (1).
Ministerial determination
A visa pre-application process must not be conducted under subsection (1) unless a determination is in force under subsection (14) in relation to the conduct of the visa pre-application process.
The Minister may, by legislative instrument, determine rules that apply in relation to the conduct of a specified visa pre-application process under subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
A determination under subsection (14):
must deal with eligibility requirements for the registration of a person as a registered participant in a visa pre-application process; and
may deal with any or all of the following matters:
the registration of persons as registered participants in a visa pre-application process;
the manner in which a person may register as a registered participant in a visa pre-application process;
information to be provided by a person when registering as a registered participant in a visa pre-application process;
whether a visa pre-application process must involve a finite registration open period and, if so, the duration of that period;
if a visa pre-application process involves a finite registration open period—the extension of that period;
whether a visa pre-application process must involve an indefinite registration open period;
whether a visa pre-application process must involve a finite selection open period and, if so, the duration of that period;
if a visa pre-application process involves a finite selection open period—the extension of that period;
whether a visa pre-application process must involve an indefinite selection open period;
the withdrawal of a person’s registration as a registered participant in a visa pre-application process;
the circumstances in which, or the time when, the registration of a person as a registered participant in a visa pre-application process lapses;
the selection of registered participants in a visa pre-application process.
Subsection (15) does not limit subsection (14).
A determination under subsection (14) may provide for different rules for different visa pre-application processes.
A determination under subsection (14) may provide for different rules for different classes of persons.
(19) Subsections (17) and (18) of this section do not limit subsection 33(3A) of the Acts Interpretation Act 1901.
(20) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a determination under subsection (14) of this section.
Eligibility requirements
The following provisions have effect:
subsections 46(3) and (4) do not, by implication, limit what may be an eligibility requirement for the registration of a person as a registered participant in a visa pre-application process;
the eligibility requirements for the registration of a person as a registered participant in a visa pre-application process may be different from the criteria and requirements prescribed for the purposes of subsection 46(3) or (4);
an eligibility requirement for the registration of a person as a registered participant in a visa pre-application process must be objective.
Visa pre-application process charge
If visa pre-application process charge is payable in respect of the registration of a person as a registered participant in a visa pre-application process, the charge is to be paid at the time of registration. If the charge is not paid at that time, the person is taken never to have been registered as a registered participant in the visa pre-application process.
The regulations may:
make provision for the remission, refund or waiver of visa pre-application process charge in specified circumstances; or
make provision for exemptions from visa pre-application process charge.
Extra-territorial application
This section extends to acts, omissions, matters and things outside Australia.
The Minister is to consider a valid application for a visa.
The requirement to consider an application for a visa continues until:
the application is withdrawn; or
the Minister grants or refuses to grant the visa; or
the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
To avoid doubt, the Minister is not to consider an application that is not a valid application.
To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
A non-citizen in the migration zone who:
does not hold a substantive visa; and
after last entering Australia:
was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
A non-citizen in the migration zone who:
does not hold a substantive visa; and
after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:
the application has been finally determined; or
the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
If:
an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:
has been removed from the migration zone under section 198; and
is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.
In paragraphs (1)(b) and (1A)(b):
a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
Subject to section 48B, a non-citizen who, while in the migration zone, has made:
an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.
(1AA) Subject to section 48B, if:
an application for a protection visa is made on a non-citizen’s behalf while the non-citizen is in the migration zone; and
the grant of the visa has been refused, whether or not:
the application has been finally determined; or
the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.
(1AB) If:
an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section, the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
For the purposes of this section, a non-citizen who:
has been removed from the migration zone under section 198; and
is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:
the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;
whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;
the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;
the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.
In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation.
In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.
In this section:
application for a protection visa means:
an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.
an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or
an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or
an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(c) an application covered by paragraph (a) or (b) that is also covered by Migration Reform Act 1992.section 39 of the
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the determination; and
sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement under subsection (3) is not to include:
the name of the non-citizen; or
any information that may identify the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
An applicant for a visa may, by written notice given to the Minister, withdraw the application.
An application that is withdrawn is taken to have been disposed of.
For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
If a non-citizen who has made:
an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or
applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;
makes a further application for a protection visa, the Minister, in considering the further application:
is not required to reconsider any information considered in the earlier application or an earlier application; and
may have regard to, and take to be correct, any decision that the Minister made about or because of that information.
Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.
The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.
The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
A visa applicant or interested person must communicate with the Minister in the prescribed way.
(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.
If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.
A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: Section 494D deals with giving documents to a person’s authorised recipient.
(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.
The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
For the purposes of subsection (1), information is in an application if the information is:
set out in the application; or
in a document attached to the application when it is made; or
given under section 55.
Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
would be the reason, or part of the reason for refusing to grant a visa; and
is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
was not given by the applicant for the purpose of the application.
The Minister must:
give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
invite the applicant to comment on it.
If a person is:
invited under section 56 to give additional information; or
invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
in writing; or
at an interview between the applicant and an officer; or
by telephone.
Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
a later time within that period; or
a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.
An applicant must make every reasonable effort to be available for, and attend, an interview.
Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.
If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.
An applicant must make every reasonable effort to be available for, and attend, an examination.
If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to:
applications for a visa of a specified class; or
applications in specified circumstances; or
applicants in a specified class of persons; or
applicants in a specified class of persons in specified circumstances.
If an applicant for a visa:
is invited to give additional information; and
does not give the information before the time for giving it has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.
If an applicant for a visa:
is invited to comment on information; and
does not give the comments before the time for giving them has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.
Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.
The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:
the information is given;
the applicant tells the Minister that the applicant does not wish to give the information or does not have it;
the time in which the information may be given ends.
The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:
the comments are given;
the applicant tells the Minister that the applicant does not wish to comment;
the time in which the comments are to be given ends.
The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:
the applicant pays the visa application charge; or
the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or
the end of the period set out in the notice.
This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that:
the health criteria for it (if any) have been satisfied; and
the other criteria for it, prescribed by this Act or the regulations, have been satisfied.
If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that:
an amount of visa application charge is payable within the prescribed period; and
subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and
the Minister may refuse to grant the visa unless that amount is paid within the prescribed period.
If, in accordance with the regulations, 2 or more non-citizens apply for a visa together, the Minister may give notices under this section in the same document.
Subdivision AC—Grant of visas
Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
if satisfied that:
the health criteria for it (if any) have been satisfied; and
the other criteria for it prescribed by this Act or the regulations have been satisfied; and
the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
if not so satisfied, is to refuse to grant the visa.
Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.
Note 2: See also the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.section 195A, under which
To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
Notification of a decision to refuse an application for a visa must:
if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
if the applicant has a right to have the decision reviewed by application under Part 5 or section 500—state:
that the decision can be reviewed; and
the time in which the application for review may be made; and
who can apply for the review; and
where the application for review can be made.
This subsection applies to an application for a visa if:
the visa is a visa that cannot be granted while the applicant is in the migration zone; and
this Act does not provide, under Part 5, for an application for review of a decision to refuse to grant the visa.
Failure to give notification of a decision does not affect the validity of the decision.
This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under this section.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to decisions to refuse to grant a visa.
The following decisions are taken to be made by the Minister causing a record to be made of the decision:
a decision to grant a visa;
a decision to refuse to grant a visa.
The record must state the day and time of its making.
The decision is taken to have been made on the day and at the time the record is made.
The Minister has no power to vary or revoke the decision after the day and time the record is made.
Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
Subject to subsection (2), a visa has effect as soon as it is granted.
A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
specified in the visa; or
when an event, specified in the visa, happens.
A visa can only be in effect during the visa period for the visa.
Note: A visa that has ceased to be in effect under section 84E may come into effect again under that section during the visa period for the visa.
(4) A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
the non-citizen does not hold a substantive visa that is in effect; and
either:
the non-citizen does not hold any other bridging visa; or
the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
(5) Subsection (4) does not apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) for a non-citizen that ceases to be in effect under subsection 82(3) if the first visa ceases to be in effect under subsection 82(3) because another Subclass 070 (Bridging (Removal Pending)) visa for the non-citizen comes into effect.
(6) For the purposes of subparagraph (b)(ii) of the definition of visa period in subsection 5(1), the first visa is to be taken to have ceased to be in effect otherwise than under subsection 82(3).
Note: This means that the visa period for the first visa ends when the second visa comes into effect.
Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.
Subdivision AF—Bridging visas
In this Subdivision:
eligible non-citizen means a non-citizen who: has been immigration cleared; or is in a prescribed class of persons; or the Minister has determined to be an eligible non-citizen.
has been immigration cleared; or
is in a prescribed class of persons; or
the Minister has determined to be an eligible non-citizen.
The Minister may make a determination under paragraph (1)(c) that a non-citizen is an eligible non-citizen if:
the non-citizen was an unlawful non-citizen when he or she entered the migration zone; and
the non-citizen made a valid application for a protection visa after he or she arrived in Australia; and
the non-citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and
the Minister has not made a primary decision in relation to the application for a protection visa; and
the Minister thinks that the determination would be in the public interest.
The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.
If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the determination; and
sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement made under subsection (4) is not to include:
the name of any non-citizen who is the subject of the determination; or
any information that may identify the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person, or any information that may identify the person.
A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or any other person, or in any other circumstances.
If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
during a specified period; or
until a specified event happens.
Note: A bridging visa may be granted to an eligible non-citizen on application, or without an application, made by the eligible non-citizen (see section 45).
Subject to subsection (2), if:
an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and
the Minister refuses to grant the visa;
the eligible non-citizen may make a further application for a bridging visa.
Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:
if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or
if the eligible non-citizen made an application for such review—the application is finally determined.
If:
an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.
The fact that a non-citizen holds a bridging visa does not prevent or affect:
an application by the non-citizen for a visa of another class; or
the grant of such a visa.
To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.
This section applies in relation to a non-citizen if:
the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and
the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and
none of the following apply:
the non-citizen has made a valid application for a protection visa that has not been finally determined;
the non-citizen could not be removed to the foreign country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen;
the non-citizen is a child under 18.
Note: The rules of natural justice do not apply in relation to third country reception arrangements: see section 198AHAA.
The Minister must give the non-citizen notice that this section applies in relation to the non-citizen.
The notice:
must be given as soon as reasonably practicable after this section starts to apply in relation to the non-citizen; and
may be given orally or in writing.
Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:
if the notice is given by a method specified in section 494B—the non-citizen is taken to have received the notice; or
otherwise—the non-citizen receives the notice.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: The visa period for the visa ends when it ceases to be in effect under this subsection.
The rules of natural justice do not apply to the giving of a notice under subsection (2).
For the purposes of paragraph (1)(b), a permission to enter the foreign country may be unconditional or a permission to enter that is subject to the non-citizen doing one or more things required by the foreign country that the non-citizen is capable of doing before entering the country.
If:
(a) notice (the earlier notice) is given to a non-citizen under subsection (2) (including under a previous application of this subsection); and
(b) the non-citizen is subsequently granted another Subclass 070 (Bridging (Removal Pending)) visa (the later visa); and
this section starts to apply in relation to the non-citizen after the later visa is granted;
the Minister must give further notice under subsection (2) to the non-citizen.
For the purposes of paragraph (7)(c):
the country in relation to which paragraph (1)(b) is satisfied may be the same as, or different from, the country in relation to which paragraph (1)(b) was satisfied for the earlier notice; but
the permission in relation to which paragraph (1)(b) is satisfied must be granted after the granting of the later visa.
This section does not affect the operation of other provisions of this Act or the regulations that have the effect that a Subclass 070 (Bridging (Removal Pending)) visa ceases to be in effect on the happening of a particular event, upon the holder ceasing to have a particular status or otherwise.
This section applies if:
(a) a non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) immediately before the commencement of this section; and
the first visa was granted to the non-citizen without an application for the first visa being made by the non-citizen; and
the first visa was granted during the period that:
starts at the start of 8 November 2023; and
ends immediately before the commencement of this section; and
at the time the first visa was granted, there was no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.
(2) Despite any other provision of this Act or the regulations, the first visa ceases to be in effect immediately after the commencement of this section.
Note: The visa period for the first visa ends when it ceases to be in effect under this subsection.
Despite any other provision of this Act or the regulations:
(a) the non-citizen is taken, immediately after the first visa ceases to be in effect under subsection (2), to have been granted another Subclass 070 (Bridging (Removal Pending)) visa (the second visa); and
the second visa is taken to come into effect as soon as it is taken to be granted under paragraph (a) of this subsection.
Note: The visa period for the second visa begins when it is taken to be granted.
This Act and the regulations apply, after the commencement of this section, in relation to the second visa in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations.
Without limiting subsection (4), the following provisions of the regulations, as in force at the time the second visa is taken to be granted under paragraph (3)(a), apply in relation to the second visa:
a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect;
a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia;
a provision specifying the mandatory conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (3)(a) is subject.
This section applies if:
a community safety order is made in relation to a non-citizen; and
(b) the order comes into force at a particular time (the relevant time).
Non-citizen who holds a visa (other than a criminal justice visa) at the relevant time
If the non-citizen holds a visa (other than a criminal justice visa) at the relevant time, then, despite any other provision of this Act or the regulations, the following apply:
that visa ceases to be in effect at the relevant time;
(b) the non-citizen is taken, immediately after the relevant time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa);
the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (b).
Note: The visa period for the visa mentioned in paragraph (a) ends at the relevant time and the visa period for the BVR visa begins when it is taken to be granted.
Non-citizen who holds a criminal justice visa at the relevant time
If:
the non-citizen holds a criminal justice visa at the relevant time; and
(b) the criminal justice visa ceases to be in effect at a particular time (the cessation time) during the period in which the community safety order is in force in relation to the non-citizen;
then, despite any other provision of this Act or the regulations, the following apply:
(c) the non-citizen is taken, immediately after the cessation time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa);
the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (c).
Note: The visa period for the BVR visa begins when it is taken to be granted.
Matters relating to the BVR visa taken to be granted to the non-citizen
Subject to subsections (6) and (7), this Act and the regulations apply, after the commencement of this section, in relation to the BVR visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations.
Without limiting subsection (4), the following provisions of the regulations, as in force at the time the BVR visa is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be), apply in relation to the BVR visa:
a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect;
a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia;
a provision specifying the conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) is subject.
The non-citizen’s BVR visa must not be subject to either of the following conditions:
a condition requiring the non-citizen to remain, between certain times of a day, at a particular address for the non-citizen for the day;
a condition requiring the non-citizen to wear a monitoring device.
Minister must not do certain things while the community safety order is in force
The Minister must not do either of the following at any time while the community safety order made in relation to the non-citizen is in force:
invite the non-citizen, for the purposes of the regulations, to apply for another Subclass 070 (Bridging (Removal Pending)) visa;
grant (whether or not on application) the non-citizen another Subclass 070 (Bridging (Removal Pending)) visa under the regulations.
Inconsistency between the community safety order and the BVR visa
If:
the community safety order that is in force in relation to the non-citizen is a community safety supervision order; and
(b) at a particular time, one or more conditions (the supervision order conditions) are imposed on the non-citizen by the community safety supervision order; and
at that time, a condition to which the non-citizen’s BVR visa is subject is inconsistent, in whole or in part, with any of the supervision order conditions;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition to the extent of any such inconsistency.
If:
the community safety order made in relation to the non-citizen is a community safety detention order; and
the non-citizen is unable, at a particular time, to comply with a condition to which the non-citizen’s BVR visa is subject; and
the non-citizen is unable to comply with the condition only because the community safety detention order is in force in relation to the non-citizen at that time;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition.
Subsections (8) and (9) do not apply at any time while the community safety order made in relation to the non-citizen is suspended.
Definitions
In this section:
community safety detention order has the same meaning as in Division 395 of the Criminal Code.
community safety order means a community safety detention order or a community safety supervision order.
community safety supervision order has the same meaning as in Division 395 of the Criminal Code.
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
any of the following applies:
at the time the visa was granted, there was no real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;
the visa was granted under section 195A;
if the non-citizen has previously held other Bridging R (Class WR) visas—the first of those visas was granted under section 195A; and
the visa is subject to a monitoring condition; and
the person fails to comply with a requirement of the monitoring condition.
Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
In this section:
monitoring condition is a mandatory condition that:
requires the holder of a Subclass 070 (Bridging (Removal Pending)) visa to do any of the following things:
to notify the Minister or Department of specified matters within a specified period or before or by a specified day;
to report at a specified time or times, and at a specified place or in a specified manner;
to attend at a specified place, on a specified day and at a specified time; and
is not a prescribed condition.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring the person to remain, between certain times of a day, at a particular address for the person for the day; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Requirement to wear monitoring device at all times
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring the person to wear a monitoring device at all times; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Requirement to fit a monitoring device etc.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring the person to allow an authorised officer to fit, install, repair or remove:
the person’s monitoring device; or
any related monitoring equipment for the person’s monitoring device; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Requirements relating to good working order of monitoring device etc.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring the person to take any specified steps, and any other reasonable steps, to ensure that the following remain in good working order:
the person’s monitoring device;
any related monitoring equipment for the person’s monitoring device; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring that, if the person becomes aware that:
the person’s monitoring device is not in good working order; or
any related monitoring equipment for the person’s monitoring device is not in good working order;
the person must notify an authorised officer of that as soon as practicable; and
the person fails to comply with the requirement of the condition.
Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Exception
Subsections (1), (2), (3) and (4) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Definitions
In this section:
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
related monitoring equipment, for a monitoring device, means any electronic equipment necessary for operating the monitoring device.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring that the person not perform any work, or participate in any regular organised activity, involving more than incidental contact with another person who is a minor or other vulnerable person; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
For the purposes of paragraph (1)(b), it does not matter whether the work or activity is for reward or otherwise.
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the visa is subject to a condition requiring that the person not go within a particular distance of a school, childcare centre or day care centre; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
A person commits an offence if:
the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
the person has been convicted of an offence involving violence or sexual assault; and
the visa is subject to a condition requiring that the person not contact or attempt to contact:
the victim of the offence; or
a member of the victim’s family; and
the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Without limiting what may be taken to be a reasonable excuse for the purposes of subsection (2), it is, for the purposes of that subsection, a reasonable excuse for failing to comply with the requirement of the condition if:
the person referred to in subparagraph (1)(c)(i) or (ii):
is at least 16 years of age; and
voluntarily consents to the contact or attempted contact; and
has capacity to give that consent; or
the contact or attempted contact is (or would, but for this Act or the regulations, be) required or authorised by or under a law of the Commonwealth, a State or a Territory.
If a person is convicted of an offence against section 76B, 76C, 76D, 76DAA, 76DAB or 76DAC, the court must impose a sentence of imprisonment of at least 1 year.
(1) This section applies in relation to a decision to grant a non-citizen a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) if the first visa is subject to one or more prescribed conditions.
To avoid doubt, the rules of natural justice do not apply to the making of the decision.
As soon as practicable after making the decision, the Minister must:
give the non-citizen, in the way that the Minister considers appropriate in the circumstances:
a written notice that sets out the decision; and
any other prescribed information; and
invite the person to make representations to the Minister, within the period and in the manner specified by the Minister, as to why the first visa should not be subject to one or more of the conditions prescribed for the purposes of subsection (1).
(4) The Minister must grant the non-citizen another Subclass 070 (Bridging (Removal Pending)) visa (the second visa), under a prescribed provision of the regulations, that is not subject to any one or more of the conditions prescribed for the purposes of subsection (1) if:
the non-citizen makes representations in accordance with the invitation; and
either:
the Minister is not satisfied, on the balance of probabilities, that the non-citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or
if the Minister is satisfied, on the balance of probabilities, that the non-citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
Note: If the Minister grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5)).
In determining whether to grant a visa in accordance with subsection (4), the Minister must decide whether to impose each condition prescribed for the purposes of subsection (1) in the same order as required by the regulations.
The Minister must give the non-citizen written notice of the decision and the reasons for the decision.
To avoid doubt, nothing in this section prevents the grant, from time to time, of a Subclass 070 (Bridging (Removal Pending)) visa to the non-citizen.
In this section:
serious offence has the same meaning as in Part 070 of Schedule 2 to the Migration Regulations 1994.
Powers relating to monitoring devices and related monitoring equipment
An authorised officer may do all things necessary or convenient to be done for any of the following purposes in relation to a person who is subject to monitoring:
installing, fitting, or removing the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
maintaining, repairing or otherwise keeping in good working order the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
operating or using the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
determining or monitoring the location of:
the person; or
an object, or the status of an object, that relates to the person;
through the operation of a monitoring device or related monitoring equipment.
Collection, use and disclosure of information
An authorised officer may collect, use, or disclose to any other person, information (including personal information) for any of the following purposes:
determining whether a requirement of a condition of a visa held by a person who is subject to monitoring is being, or has been, complied with;
determining whether a person who is subject to monitoring has committed an offence against this Act or the regulations;
protecting the community in relation to persons who are subject to monitoring;
facilitating the location of a person subject to monitoring who is suspected of having failed to comply with a requirement of a condition of a visa held by the person;
facilitating the location of a person who is or has been subject to monitoring in the event that either or both of the following apply:
there is a real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;
a visa held by the person ceases to be in effect;
facilitating the performance of functions, and exercise of powers, of authorised officers under this Act (including this section) and the regulations in relation to persons who are or have been subject to monitoring.
Powers may be exercised despite other laws
An authorised officer may exercise a power under subsection (1) or (2) despite any other provision of:
this Act or the regulations (other than regulations made for the purposes of subsection (4) of this section); or
any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
Powers are exercisable subject to regulations
An authorised officer’s exercise of a power under subsection (1) or (2) is subject to any conditions, restrictions or other limitations that are prescribed by the regulations for the purposes of this subsection.
Other powers not limited
The conferral of a power on an authorised officer by subsection (1) or (2) does not, by implication, limit any other powers that exist, or existed, for an authorised officer or any other person to do:
a thing authorised by either of those subsections; or
any other thing.
Definitions
In this section:
authorised officer, when used in subsection (1) or (2), includes:
a person who is authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision; and
a person who is included in a class of persons authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision, including a person who becomes a member of the class after the authorisation is given.
Note: This definition does not limit the definition of authorised officer in subsection 5(1).
monitoring device has the same meaning as in section 76D.
related monitoring equipment, for a monitoring device, has the same meaning as in section 76D.
subject to monitoring: a person is subject to monitoring if the person holds a Subclass 070 (Bridging (Removal Pending)) visa that is subject to a condition requiring the person to wear a monitoring device at all times.
Subdivision AG—Other provisions about visas
To avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa.
If:
a child born in Australia is a non-citizen when born; and
at the time of the birth:
one of the child’s parents holds a visa (other than a special purpose visa); and
the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.
If:
a child born in Australia is a non-citizen when born; and
at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to visas granted under this section.
If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if:
the visa is permission for the re-entry; and
the visa is in effect on re-entry.
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
does not go (other than for transit purposes) to a foreign country; and
remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
is outside the migration zone for no longer than the prescribed period.
A visa to travel to Australia during a period is not permission to travel to it outside that period.
A visa to enter Australia within a period is not permission to so enter outside that period.
A visa to remain in Australia during a period is not permission to so remain outside that period.
A visa that is cancelled ceases to be in effect on cancellation.
A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.
(2AA) Despite subsection (2):
a maritime crew visa held by a non-citizen does not cease to be in effect if a substantive visa for the non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and
a substantive visa held by a non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non-citizen comes into effect.
A temporary visa held by a non-citizen ceases to be in effect if an enforcement visa for the non-citizen comes into effect.
A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect.
A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.
A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
has entered Australia in that period or on or before that date; and
is in Australia at the end of that period or on that date.
A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.
A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.
A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.
This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 84E, 173 and 174).
(10) For the purposes of subsections (5), (6) and (7), particular date includes:
the date an event, specified in the visa, happens; or
the date the holder ceases to have a status specified in the visa or the regulations.
Where:
a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and
the person accompanies his or her spouse or de facto partner to Australia (whether before or after the commencement of this section);
the person shall be taken to be included in any visa granted to the spouse or de facto partner evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement.
Note: Subsection 5(1) defines de facto partner and spouse. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009.
Where:
the name of a child is included in the passport or other document of identity of a parent of the child; and
the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.
Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.
(1) The Minister may, by legislative instrument, determine that dealing with applications for visas (including protection visas) of a specified class is to stop until a day specified in the determination (in this section called the resumption day).
On and after the commencement of an instrument made under subsection (1), no act is to be done in relation to any application for a visa of the class concerned until the resumption day.
A determination under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, de facto partner or dependent child of:
an Australian citizen; or
the holder of a permanent visa that is in effect; or
a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the determination concerned.
For the purposes of this section, a child of a person is a dependent child if the child:
does not have a spouse or de facto partner; and
either:
is under 18; or
is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
In this section:
act means an act connected with performing functions or exercising powers under or for the purposes of this Act.
Subdivision AGA—Arrival control determinations
The object of this Subdivision is to allow temporary restrictions on the arrival of certain classes of temporary visa holders in Australia, where this is necessary to protect the integrity and sustainability of Australia’s immigration system, including when events or circumstances outside Australia mean that there is an increased risk that certain classes of temporary visa holders will not depart Australia when their visas cease to be in effect.
(1) The Minister may, by legislative instrument, make a determination (an arrival control determination) specifying that section 84E (suspension of temporary visas held by non-citizens) applies, either generally or in specified circumstances, to one or more specified classes of non-citizens.
Note: Section 84F requires the Minister to cause a copy of an arrival control determination to be tabled in each House of the Parliament within 2 sitting days of that House after making the determination.
Before making an arrival control determination, the Minister must be reasonably satisfied that:
an event or circumstance has occurred, or is occurring, outside Australia; and
one or both of the following apply:
having regard to the event or circumstance, non-citizens of a kind to whom the determination is to apply may, if they enter Australia on a temporary visa, remain in Australia after the visa ceases to be in effect;
if the event or circumstance had occurred, or had been occurring, at the time non-citizens of a kind to whom the determination is to apply were to make an application for a temporary visa, the visa may not have been granted; and
having regard to the object of this Subdivision, it is in the national interest to make the determination.
Before making an arrival control determination, the Minister must obtain agreement in writing to the making of the determination from:
the Prime Minister; and
(b) the Minister administering the Diplomatic Privileges and Immunities Act 1967.
The Minister may, by legislative instrument, revoke an arrival control determination made under subsection (1).
When arrival control determination is in force
An arrival control determination must specify the period for which the determination is in force, which must not be longer than the period that the Minister considers appropriate in all the circumstances.
Note: Under subsection (6), an arrival control determination cannot be in force longer than the period of 6 months beginning on the day after the day the determination commences.
An arrival control determination is repealed at the earlier of the following times (unless revoked earlier under subsection (4)):
the end of the period specified for the purposes of subsection (5);
the end of the period of 6 months beginning on the day after the day the determination commences.
Personal power etc.
The power under subsection (1) or (4) may only be exercised by the Minister personally.
The rules of natural justice do not apply to an exercise of power under subsection (1) or (4).
(9) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to the power under subsection (1) of this section.
Note: An arrival control determination may not be varied or amended, but may be revoked under subsection (4) of this section.
Nothing in this Act prevents the Minister from exercising the power in subsection (1) more than once in relation to:
the same event or circumstance; or
the same class of non-citizens.
An arrival control determination may make different provision with respect to different classes of non-citizens.
The Minister must ensure only one arrival control determination is in force in relation to a particular class of non-citizens at any one time.
(13) Section 42 (disallowance) of the Legislation Act 2003 does not apply to:
an arrival control determination made under subsection (1); or
a revocation of an arrival control determination under subsection (4).
An arrival control determination does not apply at a particular time in relation to a non-citizen if, at that time, the non-citizen holds:
a protection visa that is a temporary visa; or
a temporary safe haven visa; or
a visa classified by the regulations as a Temporary (Humanitarian Concern) (Class UO) visa; or
a bridging visa granted as a result of an application for a visa of a kind referred to in any of paragraphs (a), (b) or (c).
Note 1: A protection visa is a visa of a class provided for by section 35A. Examples of protection visas that are temporary visas include temporary protection visas (see subsection 35A(3)) and safe haven enterprise visas (see subsection 35A(3A)).
Note 2: An arrival control determination does not cause permanent visas to cease to be in effect (see subsection 84E(1)). As a result, permanent visas such as permanent protection visas, or visas classified by the regulations as a Refugee and Humanitarian (Class XB) visa are not affected by an arrival control determination.
Subsection (1) has effect in relation to a visa holder regardless of whether the visa is granted before, on or after the time the determination comes into force.
An arrival control determination does not apply at any time in relation to a non-citizen if the non-citizen is in the migration zone at the time the determination commences.
An arrival control determination does not apply in relation to a non-citizen at a particular time if, at that time, the non-citizen is:
the spouse, de facto partner or dependent child (within the meaning of the regulations) of:
an Australian citizen; or
the holder of a permanent visa that is in effect; or
a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or
the parent of a child who is under 18 and who is in Australia; or
the subject of a permitted travel certificate that is in force.
Note: An arrival control determination does not apply to a non-citizen if the Minister issues a permitted travel certificate in relation to the non-citizen (see subsection 84D(1)). Under subsection 84D(5), a permitted travel certificate may not be revoked while the non-citizen is in the migration zone.
Subsections (1), (3) and (4) apply despite anything in an arrival control determination.
(1) The Minister may issue a certificate (a permitted travel certificate) providing that an arrival control determination does not apply in relation to a particular non-citizen if the Minister is satisfied in all the circumstances that it is appropriate for the determination not to apply to that non-citizen (whether or not the certificate is requested under subsection (2)).
A non-citizen, or a person authorised to act on behalf of the non-citizen, may make a request in writing to the Minister for a permitted travel certificate in relation to the non-citizen.
If the Minister issues a permitted travel certificate in relation to a non-citizen, the certificate has effect despite anything in the arrival control determination.
Note: An arrival control determination may specify that section 84E (suspension of temporary visas held by non-citizens) applies, either generally or in specified circumstances, to one or more specified classes of non-citizens.
A permitted travel certificate must be in writing.
The Minister may, in writing, revoke a permitted travel certificate in relation to a non-citizen at a particular time if the non-citizen is not in the migration zone at that time.
Other matters
Each of the following is not a legislative instrument:
a permitted travel certificate;
a revocation under subsection (5).
The rules of natural justice do not apply to an exercise of power under subsection (1) or (5).
The Minister does not have a duty to consider whether to exercise the power to issue a permitted travel certificate in relation to a particular non-citizen, whether the Minister is requested to do so under subsection (2), or in any other circumstances.
Report to Parliament
The Minister must, as soon as practicable after the end of each period of 6 months beginning on 1 January or 1 July, cause a report to be laid before each House of the Parliament containing a statement of the number of permitted travel certificates issued under this section during the period.
Temporary visa of non-citizen not in the migration zone ceases to be in effect
A temporary visa held by a non-citizen ceases to be in effect if an arrival control determination that is in force applies to the non-citizen.
Note 1: In general, non-citizens must not travel to Australia without a visa that is in effect (see section 42). Visa holders are usually required to enter Australia at a port (see section 43). A person who enters Australia must provide evidence of their identity (see section 166).
Note 2: An arrival control determination does not apply in relation to certain non-citizens, including a non-citizen who is in the migration zone at the time the determination commences, or a non-citizen who is the subject of a permitted travel certificate that is in force (see section 84C).
Note 3: Under subsection 84D(5), a permitted travel certificate may not be revoked while the non-citizen is in the migration zone.
Temporary visa may come into effect again
If a temporary visa held by a non-citizen has ceased to be in effect under subsection (1), the visa comes into effect again at a particular time during the visa period for the visa if, at that time:
the arrival control determination referred to in that subsection is revoked or otherwise ceases to be in effect; or
the non-citizen ceases to be in a class of non-citizens specified in the determination mentioned in paragraph (a); or
the non-citizen becomes a non-citizen to whom the determination mentioned in paragraph (a) does not apply.
Other cessation provisions not limited or otherwise affected
This section does not limit, or otherwise affect, any other provision of this Act under which a visa ceases to be in effect.
Note: A non-citizen’s visa may cease to be in effect under another provision of this Act. If that occurs, the visa period for the visa ends (see subparagraph (b)(i) of the definition of visa period in subsection 5(1)) and the non-citizen will no longer hold the visa (see section 77).
If the Minister makes an arrival control determination, the Minister must cause to be laid before each House of the Parliament:
a copy of the determination; and
a statement of the Minister’s reasons for making the determination.
The Minister must comply with subsection (1) within 2 sitting days of each House of the Parliament after the day on which the determination is made.
A failure to comply with subsection (1) or (2) does not affect the validity of the determination.
Subdivision AH—Limit on visas
Subject to subsection (2), the Minister may, by legislative instrument, determine the maximum number of:
the visas (including protection visas) of a specified class; or
the visas (including protection visas) of specified classes;
that may be granted in a specified financial year.
Subsection (1) does not apply in relation to temporary protection visas or safe haven enterprise visas.
If:
there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and
the number of visas of the class or classes granted in the year reaches that maximum number;
no more visas of the class or classes may be granted in the year.
Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of:
an Australian citizen; or
the holder of a permanent visa that is in effect; or
a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
For the purposes of this section, a child of a person is a dependent child if the child:
does not have a spouse or de facto partner; and
either:
is under 18; or
is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
If:
a person has applied, whether before or after the commencement of this section, for the grant of a visa; and
a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and
the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and
after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and
the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and
the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and
the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;
section 86 does not prevent the grant of the visa to the person.
Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.
The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.
The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.
If a determination under the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.section 85 applies, or has applied, to visas of a class or classes,
Subdivision AI—Safe third countries
This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.
In this Subdivision:
agreement includes a written arrangement or understanding, whether or not binding.
CPA means the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.
For the purposes of this Subdivision, if, apart from this section:
a colony, overseas territory or protectorate of a foreign country; or
an overseas territory for the international relations of which a foreign country is responsible;
is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.
This Subdivision applies to a non-citizen at a particular time if:
the non-citizen is in Australia at that time; and
at that time, the non-citizen is covered by:
the CPA; or
an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (see section 91D); and
the non-citizen is not excluded by the regulations from the application of this Subdivision.
To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made.
(1) A country is a safe third country in relation to a non-citizen if:
the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and
the non-citizen has a prescribed connection with the country.
Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:
the person is or was present in the country at a particular time or at any time during a particular period; or
the person has a right to enter and reside in the country (however that right arose or is expressed).
The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about:
the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and
the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and
the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country:
to go to the country; and
to remain in the country during the period in which any claim by the person for asylum is determined; and
if the person is determined to be a refugee while in the country—to remain in the country until a durable solution relating to the permanent settlement of the person is found.
A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences.
Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:
if the non-citizen has not been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a visa is a valid application; or
if the non-citizen has been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a protection visa is a valid application.
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine:
that section 91E does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or
that section 91G does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that section.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the determination; and
sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement under subsection (3) is not to include:
the name of the non-citizen; or
any information that may identify the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
Subject to section 91F and subsection (3), if:
this Subdivision applies to a non-citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non-citizen immediately before that time; and
the regulation prescribes a day as the cut off day; and
(c) during the period (the transitional period) from the beginning of the cut off day until immediately before that regulation takes effect, the non-citizen made an application for a protection visa;
then:
if the non-citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
on and after the regulation takes effect, this Act applies as if the non-citizen had applied for a protection visa immediately after the regulation takes effect.
To avoid doubt:
paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the ART, a Federal Court or any other body or court; and
no visa may be granted to the non-citizen as a direct, or indirect, result of such an application.
Subsection (1) does not apply in relation to a non-citizen who, before the regulation referred to in that subsection takes effect, has:
been granted a substantive visa as a result of an application referred to in that subsection; or
been determined under this Act to be a non-citizen who satisfies the criterion mentioned in subsection 36(2).
The cut off day specified in the regulation must not be:
(a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or
more than 6 months before the regulation takes effect.
Subdivision AJ—Temporary safe haven visas
This Subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.
Note: For temporary safe haven visas, see section 37A.
This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:
holds a temporary safe haven visa; or
has not left Australia since ceasing to hold a temporary safe haven visa.
This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.
Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the determination; and
sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement under subsection (3) is not to include:
the name of the non-citizen; or
any information that may identify the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
Subdivision AL—Other provisions about protection visas
Applicant for protection visa
If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.
If:
the applicant has been given a request under subsection (1); and
the applicant refuses or fails to comply with the request; and
when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
If:
the applicant has been given a request under subsection (1); and
the applicant complies with the request; and
the Minister has reason to believe that, because of:
the manner in which the applicant complied with the request; or
the applicant’s demeanour in relation to compliance with the request;
the applicant was not sincere;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
Non-citizen refused immigration clearance
If:
either:
a non-citizen gave information to an officer when the non-citizen was in immigration clearance, and the non-citizen is subsequently refused immigration clearance; or
a non-citizen was refused immigration clearance and subsequently gave information to an officer; and
the information is relevant to the administration or enforcement of this Act or the regulations;
an officer may, either orally or in writing, request the non-citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.
If:
the non-citizen has been given a request under subsection (4); and
the non-citizen refuses or fails to comply with the request; and
when the request was made, the non-citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non-citizen’s credibility in the event that the non-citizen refuses or fails to comply with the request;
then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.
If:
the non-citizen has been given a request under subsection (4); and
the non-citizen complies with the request; and
the Minister has reason to believe that, because of:
the manner in which the non-citizen complied with the request; or
the non-citizen’s demeanour in relation to compliance with the request;
the non-citizen was not sincere;
then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.
Officer
(7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.
Oaths or affirmations
The Minister or an officer may administer an oath or affirmation for the purposes of this section.
The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
The Minister must refuse to grant the protection visa to the applicant if:
the applicant has been given a request under subsection (1); and
the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
refuses or fails to comply with the request; or
produces a bogus document in response to the request.
Subsection (2) does not apply if the Minister is satisfied that the applicant:
has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
either:
produces documentary evidence of his or her identity, nationality or citizenship; or
has taken reasonable steps to produce such evidence.
For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
the Minister is satisfied that the applicant:
has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
has caused such documentary evidence to be destroyed or disposed of.
Subsection (1) does not apply if the Minister is satisfied that the applicant:
has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
either:
provides documentary evidence of his or her identity, nationality or citizenship; or
has taken reasonable steps to provide such evidence.
For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
(1) This section applies to a non-citizen in Australia (the family applicant):
who applies for a protection visa; and
(b) who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.
Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.
This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if the proceeding relates to a person in the person’s capacity as:
a person who applied for a protection visa; or
a person who applied for a protection-related bridging visa; or
a person whose protection visa has been cancelled; or
a person whose protection-related bridging visa has been cancelled.
The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
In this section:
application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.
Subdivision B—The “points” system
This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.
The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
In this section:
prescribed means prescribed by regulations in force at the time the assessment is made.
An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
if the Minister puts the application aside—the Minister is taken to have put the application into a pool.
Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.
When section applies
This section applies if the Minister puts an application into a pool.
How applications to be dealt with
If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:
the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and
if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and
if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and
if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)).
Removal of applications from pool
An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
the end of 12 months after the assessment of the applicant’s assessed score;
the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score
If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.
Section to be subject to section 95A
This section has effect subject to section 95A.
This section applies to an application that:
is in the pool at the commencement of this section; or
is put in the pool after that commencement.
Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years.
(1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.
(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
This Act does not prevent a pool mark and a pass mark from being equal.
This Act does not prevent a pool mark and a pass mark from being varied independently of each other.
Subdivision C—Visas based on incorrect information may be cancelled
In this Subdivision:
application form means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note: Bogus document is defined in subsection 5(1).
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the ART, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
A non-citizen must fill in or complete his or her application form in such a way that:
all questions on it are answered; and
no incorrect answers are given or provided.
A non-citizen must fill in his or her passenger card in such a way that:
all questions on it are answered; and
no incorrect answers are given.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister or the ART performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
Subsection (1) applies despite the grant of any visa.
If a non-citizen becomes aware that:
an answer given or provided in his or her application form; or
an answer given in his or her passenger card; or
information given by him or her under section 104 about the form or card; or
a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
Subsection (1) applies despite the grant of any visa.
The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
any information given by the non-citizen for purposes unrelated to the non-citizen’s visa application; or
any other information.
If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a written notice:
giving particulars of the possible non-compliance; and
stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or
if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
stating that the Minister will consider cancelling the visa:
if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
if the holder gives the Minister a written response within that period—when the response is given; or
otherwise—at the end of that period; and
setting out the effect of sections 108, 109, 111 and 112; and
informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
requiring the holder:
to tell the Minister the address at which the holder is living; and
if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address.
The period to be stated in the notice under subsection (1) must be:
in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
otherwise—14 days.
Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
visas of a stated class; or
visa holders in stated circumstances; or
visa holders in a stated class of people (who may be visa holders in a particular place); or
visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
The notice under subsection (1) must be given in the prescribed way.
If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
The possible non-compliances that:
may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
The Minister is to:
consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
decide whether there was non-compliance by the visa holder in the way described in the notice.
The Minister, after:
deciding under section 108 that there was non-compliance by the holder of a visa; and
considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
having regard to any prescribed circumstances;
may cancel the visa.
If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
If the Minister cancels a visa under subsection (1), the Minister must give the former holder of the visa a written notice that:
sets out the decision; and
specifies the ground for the cancellation; and
if the former holder has a right to have the decision reviewed by application under Part 5—states:
that the decision can be reviewed; and
the time in which the application for review may be made; and
who can apply for the review; and
where the application for review can be made.
The notice under subsection (3) must be given in the prescribed way.
Failure to give notice of a decision does not affect the validity of the decision.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under subsection (3) of this section.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to decisions to cancel a visa under this section.
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.
If the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or the ART sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.
In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.
This Subdivision applies to:
applications for visas made; and
passenger cards filled in;
on or after 1 September 1994.
This Subdivision, other than sections 101 and 102, applies to:
(a) applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and
passenger cards filled in before 1 September 1994.
This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:
this Subdivision had applied to:
the application for the visa; and
passenger cards filled in before that date; and
(b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and
for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.
Subdivision D—Visas may be cancelled on certain grounds
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
its holder has not complied with a condition of the visa; or
another person required to comply with a condition of the visa has not complied with that condition; or
if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
the presence of its holder in Australia is or may be, or would or might be, a risk to:
the health, safety or good order of the Australian community or a segment of the Australian community; or
the health or safety of an individual or individuals; or
the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
in the case of a student visa:
its holder is not, or is likely not to be, a genuine student; or
its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
a prescribed ground for cancelling a visa applies to the holder.
(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.
(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
incorrect information was given, by or on behalf of the person who holds the current visa, to:
an officer; or
an authorised system; or
the Minister; or
any other person, or a tribunal, performing a function or purpose under this Act; or
any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
the incorrect information was taken into account in, or in connection with, making:
a decision that enabled the person to make a valid application for a visa; or
a decision to grant a visa to the person; and
the giving of the incorrect information is not covered by Subdivision C.
This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or
(b) a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.
(1AD) Subsection (1AC) applies:
whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and
whether or not the sponsorship-related event occurred.
The regulations may do any one or more of the following:
prescribe matters to which the Minister must, or must not, have regard in determining whether the Minister is satisfied as mentioned in:
a paragraph of subsection (1) or (1AC); or
subsection (1AA) or (1AB); or
prescribe matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
a paragraph of subsection (1) or (1AC); or
subsection (1AA) or (1AB); or
specify the weight to be given to a matter prescribed under paragraph (a) or (b) of this subsection.
Subsection (1A) does not limit the matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
a paragraph of subsection (1) or (1AC); or
subsection (1AA) or (1AB).
The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
In this section:
benefit has a meaning affected by section 245AQ.
sponsorship-related event has the meaning given by section 245AQ.
Subject to subsection (2), a visa held by a non-citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC):
before the non-citizen enters Australia; or
when the non-citizen is in immigration clearance (see section 172); or
when the non-citizen leaves Australia; or
while the non-citizen is in the migration zone.
A permanent visa cannot be cancelled under subsection 116(1) if the holder of the visa:
is in the migration zone; and
was immigration cleared on last entering Australia.
The powers to cancel a visa under:
section 109 (incorrect information); or
section 116 (general power to cancel); or
section 128 (when holder outside Australia); or
section 133A (Minister’s personal powers to cancel visas on section 109 grounds); or
section 133C (Minister’s personal powers to cancel visas on section 116 grounds); or
section 134B (emergency cancellation on security grounds); or
section 134 (cancellation of business visas); or
section 137Q (cancellation of regional sponsored employment visas); or
section 140 (consequential cancellation of other visas); or
section 500A (refusal or cancellation of temporary safe haven visas); or
section 501, 501A, 501B or 501BA (special power to refuse or cancel on character grounds);
are not limited, or otherwise affected, by each other.
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must, in writing, notify the holder that there appear to be grounds for cancelling it and:
give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
invite the holder to show within a specified time that:
those grounds do not exist; or
there is a reason why it should not be cancelled.
The notification under subsection (1) must be given in the prescribed way.
The other provisions of this Subdivision do not apply to a cancellation:
under a provision other than section 116; or
to which Subdivision F applies.
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
would be the reason, or a part of the reason, for cancelling a visa; and
is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
was not given by the holder; and
was not disclosed to the holder in the notification under section 119.
The Minister must by written notice:
give particulars of the relevant information to the holder; and
set out why it is relevant to the cancellation; and
invite the holder to comment on it.
The notice under subsection (2) must be given in the prescribed way.
An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
in writing; or
at an interview between the holder and an officer; or
by telephone.
Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
a later time within that period; or
a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
This section is subject to sections 125 and 126.
Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:
visas of a specified class; or
visa holders in specified circumstances; or
visa holders in a specified class of persons (which may be visa holders in a specified place); or
visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances.
If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.
Subject to the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:section 120 (give information) and subsection (2),
the holder responds to the notice;
the holder tells the Minister that the holder does not wish to respond;
the time for responding to the notice passes.
The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:
the comments are given;
the holder tells the Minister that the holder does not wish to comment;
the time for commenting passes.
If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.
If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.
When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in writing.
Notification of a decision to cancel a visa must:
specify the ground for the cancellation; and
if the former visa holder has a right to have the decision reviewed by application under Part 5—state:
that the decision can be reviewed by the ART; and
the time in which the application for review may be made; and
who can apply for the review; and
where the application for review can be made.
The notification under subsection (1) must be given in the prescribed way.
Failure to give notification of a decision does not affect the validity of the decision.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under this section.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to decisions to cancel a visa.
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
If:
the Minister is satisfied that:
there is a ground for cancelling a visa under section 116; and
it is appropriate to cancel in accordance with this Subdivision; and
the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a written notice:
stating the ground on which it was cancelled; and
giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
inviting the former holder to show, within a specified time, being a prescribed time, that:
that ground does not exist; or
there is a reason why the visa should not have been cancelled; and
stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
The notice is to be given in the prescribed way.
Failure to give notification of a decision does not affect the validity of the decision.
Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to:
visas of a specified class; or
former visa holders in specified circumstances; or
former visa holders in a specified class of persons (which may be former visa holders in a specified place); or
former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances.
Subject to subsection (2), after considering any response to a notice under the Minister:section 129 of the cancellation of a visa,
if not satisfied that there was a ground for the cancellation; or
if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
When, under the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in writing.section 131,
The notification under subsection (1) must be given in the prescribed way.
If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
Subdivision FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds
Action by Minister—natural justice applies
If a notice was given under the Minister:section 107 to the holder of a visa in relation to a ground for cancelling the visa under section 109, and the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of
decided that the ground did not exist; or
decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground);
the Minister may set aside that decision and cancel the visa, if:
the Minister considers that the ground exists; and
the visa holder does not satisfy the Minister that the ground does not exist; and
the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105.
The procedure set out in Subdivision C does not apply to a decision under subsection (1).
Action by Minister—natural justice does not apply
The Minister may cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if:
the Minister is satisfied that a ground for cancelling the visa under section 109 exists; and
the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105.
The rules of natural justice, and the procedure set out in Subdivision C, do not apply to a decision under subsection (3).
The Minister may cancel a visa under subsection (3) whether or not:
the visa holder was given a notice under section 107 in relation to the ground for cancelling the visa; or
the visa holder responded to any such notice; or
the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
decided that the ground did not exist; or
decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground).
If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.
Minister’s exercise of power
The power in subsection (1) or (3) may only be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.
Subsection 138(4) does not prevent the Minister setting aside a decision of the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate and cancelling a visa in accordance with this section.
Subject to subsection (2), the possible non-compliances that can constitute a ground for the cancellation of a visa under subsection 133A(1) or (3) include non-compliances that occurred at any time (whether before or after the commencement of this section), including non-compliances in respect of any previous visa held by the person.
Section 115 (application of Subdivision C) applies in relation to section 133A in the same way that it applies in relation to Subdivision C.
To avoid doubt, subsections 133A(1) and (3) apply:
whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and
whether the non-compliance because of which the ground is considered to exist was deliberate or inadvertent.
Steps taken for the purposes of the Minister exercising the power in subsection 133A(1) or (3) in relation to an instance of possible non-compliance by a person do not prevent:
a notice under section 107 being given to that person because of another instance of possible non-compliance; or
the exercise of the power in subsection 133A(1) or (3) in relation to the person because of another instance of possible non-compliance.
The non-cancellation of a visa under section 133A despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
Action by Minister—natural justice applies
If a notification was given under the Minister:section 119 to the holder of a visa in relation to a ground for cancelling the visa under section 116, and the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of
decided that the ground did not exist; or
decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground);
the Minister may set aside that decision and cancel the visa if:
the Minister considers that the ground exists; and
the visa holder does not satisfy the Minister that the ground does not exist; and
the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
The procedures set out in Subdivisions E and F do not apply to a decision under subsection (1).
Action by Minister—natural justice does not apply
The Minister may cancel a visa held by a person if:
the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and
the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).
The Minister may cancel a visa under subsection (3) whether or not:
the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or
the visa holder responded to any such notification; or
the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
decided that the ground did not exist; or
decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or
a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.
If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.
Minister’s exercise of power
The power in subsection (1) or (3) may only be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.
Section 117 applies in relation to the power in subsection (1) or (3) in the same way as it applies to the cancellation of a visa under section 116.
Subsection 138(4) does not prevent the Minister setting aside a decision of the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate and cancelling a visa in accordance with this section.
The regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether:
a person; or
a person included in a specified class of persons;
satisfies the Minister that a ground for cancelling the person’s visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
If a decision is made under subsection 133A(1) or 133C(1) to cancel a visa that has been granted to a person, the Minister must give the former holder of the visa a written notice that:
sets out the decision; and
specifies the provision under which the decision was made; and
sets out the reasons (other than non-disclosable information) for the decision.
The notice is to be given in the prescribed way.
A failure to comply with this section in relation to a decision does not affect the validity of the decision.
(1) This section applies if the Minister makes a decision (the original decision) under subsection 133A(3) or 133C(3) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
would be the reason, or a part of the reason, for making the original decision; and
is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
As soon as practicable after making the original decision, the Minister must:
give the person, in the prescribed way:
a written notice that sets out the original decision; and
particulars of the relevant information; and
invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist.
The power in subsection (4) may only be exercised by the Minister personally.
If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
Any detention of the person that occurred during any part of the period:
beginning when the original decision was made; and
ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision FB—Emergency cancellation on security grounds
The rules of natural justice do not apply to a decision made under this Subdivision.
The Minister must cancel a visa held by a person if:
there is an assessment made by ASIO for the purposes of this section; and
the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
the assessment contains a recommendation that all visas held by the person be cancelled under this section; and
the person is outside Australia.
Application of section
This section applies to a visa that is cancelled under section 134B.
First ground to revoke cancellation
The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5).
However, the Minister must not revoke the cancellation under subsection (2) if:
there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
the assessment contains a recommendation that the cancellation not be revoked under subsection (2).
Second ground to revoke cancellation
If:
there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection;
then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made.
Period
For the purposes of subsections (2), (3) and (4), the period is the period that:
(a) starts at the beginning of the day (the cancellation day) the visa is cancelled; and
ends at the end of the 28th day after the cancellation day.
If the cancellation of a visa is revoked under section 134C, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
However, the Minister may vary:
the time the visa is to be in effect; or
any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
If:
the Minister decides under section 134B to cancel a visa; and
the Minister decides under subsection 134C(3) not to revoke the cancellation;
then the Minister must give the former holder of the visa written notice of the cancellation.
The notice must be given:
if the assessment made by ASIO for the purposes of the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; andsection 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section—as soon as reasonably practicable after ASIO advises
otherwise—as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.
The notice must:
state that the visa was cancelled under section 134B; and
be given to the person in the prescribed way.
Failure to give the notice does not affect the validity of either:
the decision under section 134B to cancel the visa; or
the decision under subsection 134C(3) not to revoke the cancellation.
This section applies if:
(a) a visa held by a person (the relevant person) is cancelled under section 134B; and
the Minister decides under subsection 134C(3) not to revoke the cancellation; and
the Minister has given a notice to the relevant person under section 134E about the cancellation.
If another person holds a visa only because the relevant person held a visa, then the Minister may, without notice to the other person, cancel the other person’s visa.
Subdivision G—Cancellation of business visas
Subject to subsection (2) and to the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa) if the Minister is satisfied that its holder:section 135,
has not obtained a substantial ownership interest in an eligible business in Australia; or
is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
does not intend to continue to:
hold a substantial ownership interest in; and
utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
intends to continue to make such genuine efforts.
Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
business proposals that the person has developed;
the existence of partners or joint venturers for the business proposals;
research that the person has undertaken into the conduct of an eligible business in Australia;
the period or periods during which the person has been present in Australia;
the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
business activity that is, or has been, undertaken by the person;
whether the person has failed to comply with a notice under section 137;
if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
the length of time that the person held the ownership interest or participated in the management (as the case requires); and
the reasons why the person no longer holds the interest or participates in the management (as the case requires).
Subject to the Minister may cancel an investment-linked visa (other than a family member’s visa) if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.section 135,
Subject to subsection (5) and to section 135, if:
the Minister cancels a person’s business visa under subsection (1) or (3A); and
a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa.
The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the ART has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including:
the Minister’s reason for the cancellation; and
a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the ART for review of the cancellation.
The notice under subsection (7) must be given in the prescribed way.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (7).
A cancellation under this section has effect on and from:
if the person applies to the ART for a review of the decision to cancel the visa—the 28th day after the day on which the ART gives its decision on that review; or
if:
the person’s visa was cancelled under subsection (4); and
the relevant person to whom paragraph (4)(a) applied has applied to the ART for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the ART gives its decision on that review; or
the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
In this section:
business visa means:
a visa included in a class of visas, being a class that:
has the words “Business Skills” in its title; and
is prescribed for the purposes of this paragraph; or
a visa:
to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
that is of a kind prescribed for the purposes of this paragraph; or
a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
the development of business links with the international market;
the creation or maintenance of employment in Australia;
the export of Australian goods or services;
the production of goods or the provision of services that would otherwise be imported into Australia;
the introduction of new or improved technology to Australia;
an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
relates to the applicant having an established business in Australia; or
is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member’s visa means a business visa held by a person:
who is or was a member of the family unit of another person who held a business visa; and
who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment-linked visa means a business visa a criterion for whose grant:
relates to the holding of a designated investment; or
is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
ownership interest, in relation to a business, means an interest in the business as:
a shareholder in a company that carries on the business; or
a partner in a partnership that carries on the business; or
the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment-linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.
return visa has the same meaning as in the regulations.
Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
stating that the Minister proposes to cancel the visa; and
inviting its holder to make representations to the Minister concerning the proposed cancellation within:
if the notice is given in Australia—28 days after the notice is given; or
if the notice is given outside Australia—70 days after the notice is given.
The holder may make such representations to the Minister within the time specified in the notice.
The Minister must give due consideration to any representations.
If:
the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
A notice under subsection (1) or (5) must be given in the prescribed way.
An application may be made to the ART for review of a decision of the Minister under subsection 134(1), (3A) or (4).
The Secretary or Australian Border Force Commissioner may by written notice require the holder of a business visa to give the Secretary or Australian Border Force Commissioner such information as is specified in the notice.
The Secretary or Australian Border Force Commissioner may not require information under subsection (1) unless the information is to be used by the Secretary, the Australian Border Force Commissioner or the Minister for the purpose of the administration of this Act or of regulations made under this Act.
A notice under subsection (1) is only valid in the period of 3 years commencing:
if the holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
if the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted.
Without limiting the generality of the information that may be required under subsection (1), the Secretary or Australian Border Force Commissioner may require the holder to advise the Secretary or Australian Border Force Commissioner in writing of any change in the address of the holder during a period specified in the notice.
A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.
The day specified in the notice may be:
the day on which the notice is issued; or
a later particular day; or
the day on which an event specified in the notice occurs.
A person who fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice.
Penalty: 50 penalty units.
Subsection (7) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7A) (see subsection 13.3(3) of the Criminal Code).
An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence under subsection (7).
In this section:
business visa has the same meaning as in section 134.
Subdivision GB—Automatic cancellation of student visas
(1) This section applies if a notice is sent to a non-citizen under Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).section 20 of the
Note 1: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
Note 2: Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences.
The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
the non-citizen complies with the notice; or
the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
A non-citizen whose visa has been cancelled under the Minister for revocation of the cancellation.section 137J may apply in writing to
A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:
2 working days after the day on which section 194 was complied with in relation to his or her detention; or
if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.
A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.
In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
On an application under the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:section 137K,
that the non-citizen did not in fact breach the relevant visa condition or conditions; or
that the breach was due to exceptional circumstances beyond the non-citizen’s control; or
of any other matter prescribed in the regulations.
However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non-citizen written notice of the decision.
Notice of a decision not to revoke a cancellation must:
specify the grounds for the decision; and
state:
that if the non-citizen was in the migration zone when the decision was made, the decision is reviewable by the ART; and
the time in which the application for review may be made; and
who may apply for the review; and
where the application for review may be made.
Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under this section.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to a decision to not to revoke a cancellation under section 137L.
The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non-citizen’s visa, if the Minister thinks that it is in the public interest to do so.
The Minister must give the relevant non-citizen written notice of a decision under subsection (1) to revoke a cancellation.
The power in subsection (1) may only be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non-citizen or anyone else requests him or her to do so, or in any other circumstances.
A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.
If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.
However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.
In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.
Despite subsection (1), any detention of the non-citizen that occurred during any part of the period:
beginning when the visa was cancelled under section 137J; and
ending at the time of the revocation of the cancellation;
is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision GC—Cancellation of regional sponsored employment visas
Employment does not commence
The Minister may cancel a regional sponsored employment visa held by a person if:
the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and
the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.
Employment terminates within 2 years
The Minister may cancel a regional sponsored employment visa held by a person if:
the Minister is satisfied that:
the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and
(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and
the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.
Regional sponsored employment visa
In this section:
regional sponsored employment visa means a visa of a kind that:
is included in a class of visas that has the words “Employer Nomination” in its title; and
is prescribed by the regulations for the purposes of this definition.
Before cancelling a person’s visa under the Minister must give the person a written notice:section 137Q,
stating that the Minister proposes to cancel the visa; and
inviting the person to make representations to the Minister concerning the proposed cancellation within:
if the notice is given in Australia—28 days after the notice is given; or
if the notice is given outside Australia—70 days after the notice is given.
The Minister must consider any representations received within that period.
If the Minister decides not to proceed with the cancellation, the Minister must give the person written notice of the decision.
A notice under subsection (1) or (3) must be given in the prescribed way.
If the Minister decides to cancel a person’s visa under section 137Q, he or she must give the person written notice of the decision. The notice must:
specify the reasons for the cancellation; and
if the decision to cancel the visa is reviewable by application under Part 5—state the period within which an application for review can be made, who can apply for the review and where the application for review can be made.
The notice under subsection (1) must be given in the prescribed way.
Failure to give notice of the decision does not affect the validity of the decision.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under this section.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to a decision to cancel a visa under section 137Q.
If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.
The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under the ART Act.
Subdivision H—General provisions on cancellation
The following decisions are taken to be made by the Minister causing a record to be made of the decision:
a decision to cancel a visa, or not to cancel a visa;
a decision to revoke the cancellation of a visa, or not to revoke the cancellation of a visa.
The record must state the day and time of its making.
The decision is taken to have been made on the day and at the time the record is made.
The Minister has no power to vary or revoke the decision after the day and time the record is made.
Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
If a visa is held by 2 or more non-citizens:
Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa; and
to avoid doubt, if the visa is cancelled because of one non-citizen being its holder, it is cancelled so that all those non-citizens cease to hold the visa.
If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
If:
a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.
If:
(a) a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and
the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
If:
a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and
the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;
the cancellation under subsection (1), (2) or (3) is revoked.
Subdivision A—Preliminary
This Division applies to visas of a prescribed kind (however described).
The purposes of this Division, to the extent it applies in relation to the temporary sponsored work visa program, are as follows:
to provide a framework for the program in order to address genuine skills shortages;
to address genuine skills shortages in the Australian labour market:
without displacing employment and training opportunities for Australian citizens and Australian permanent residents (within the meaning of the regulations); and
without the program serving as a mainstay of the skilled migration program;
to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program;
to impose obligations on work sponsors to ensure that:
non-citizens sponsored to work in Australia under the program are protected; and
the program is not used inappropriately;
to enable monitoring, detection, deterrence and enforcement in relation to any inappropriate use of the program;
to give Fair Work Inspectors (including the Fair Work Ombudsman) and inspectors appointed under this Division the necessary powers and functions to investigate compliance with the program.
The purposes of this Division, to the extent it applies in relation to the sponsored family visa program, are:
to strengthen the integrity of the program; and
to place greater emphasis on the assessment of persons as family sponsors; and
to improve the management of family violence in the delivery of the program.
The purposes referred to in subsection (2) are to be achieved by establishing a framework that:
requires the approval of persons as family sponsors before any relevant visa applications are made; and
imposes obligations on persons who are or were approved family sponsors; and
provides for sanctions if such obligations are not satisfied; and
facilitates the sharing of personal information in accordance with this Division.
The Minister must take all reasonable steps to ensure that, at all times, there is in existence a council that:
is known as the Ministerial Advisory Council on Skilled Migration; and
is established under the executive power of the Commonwealth; and
includes representatives of unions, industry and State and Territory governments and other members (if any) nominated by the Minister; and
meets at least quarterly.
Without limiting its functions apart from this section, the Ministerial Advisory Council on Skilled Migration is to provide advice to the Minister in relation to the temporary sponsored work visa program.
Subdivision B—Approval of sponsors
The Minister must approve a person as a work sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
Note: A person (other than a Minister) who is a party to a work agreement is an approved work sponsor and does not need to be approved as a work sponsor under this section (see paragraph (b) of the definition of approved work sponsor).
The Minister must approve a person as a family sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
The regulations must prescribe classes in relation to which a person may be approved as a work sponsor or family sponsor.
Different criteria may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be approved as a work sponsor or family sponsor; and
different classes of person within a class in relation to which a person may be approved as a work sponsor or family sponsor.
The regulations may establish a process for the Minister to approve a person as a work sponsor or family sponsor.
Different processes may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be approved as a work sponsor or family sponsor.
An approval as a work sponsor or family sponsor may be on terms specified in the approval.
The terms must be of a kind prescribed by the regulations.
Note: The following are examples of the kinds of terms that might be set out in the regulations:
the number of people whom the approved sponsor may sponsor under the approval;
the duration of the approval.
An actual term may be prescribed by the regulations.
Different kinds of terms may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be approved as a work sponsor or family sponsor.
The regulations may establish a process for the Minister to vary a term of a person’s approval as a work sponsor or family sponsor.
The Minister must vary a term specified in an approval if:
the term is of a kind prescribed by the regulations for the purposes of this paragraph; and
prescribed criteria are satisfied.
Different processes and different criteria may be prescribed for:
different kinds of visa (however described); and
different kinds of terms; and
different classes in relation to which a person may be approved as a work sponsor or family sponsor.
Subdivision BA—Approval of nominations made by approved work sponsors
A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
the applicant or proposed applicant’s proposed occupation; or
the program to be undertaken by the applicant or proposed applicant; or
the activity to be carried out by the applicant or proposed applicant; or
a proposed occupation, program or activity.
The Minister must approve a person’s nomination if:
in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and
in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and
in any case—the person is an approved work sponsor; and
in any case—the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
The regulations may establish a process for the Minister to approve a person’s nomination.
Different criteria and different processes may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be approved as a work sponsor.
If the regulations provide for notification by the Minister of a decision whether or not to approve a person’s nomination, then the following provisions of the ART Act do not apply to the decision:
section 267 (decision-maker must have regard to rules when giving notice of decision);
section 268 (requesting reasons for a reviewable decision from decision-maker).
Scope
This section applies to a nomination by a person, under section 140GB, if:
the person is, or has applied to be, in a class of approved work sponsors prescribed by the regulations; and
the person nominates:
a proposed occupation for the purposes of paragraph 140GB(1)(b); and
a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and
it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.
For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Labour market testing condition
The labour market testing condition is satisfied if:
the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and
the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and
the nomination is accompanied by:
evidence in relation to that labour market testing of a kind determined under subsection (6A); and
if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person—information about those redundancies or retrenchments; and
having regard to that evidence, and information (if any), the Minister is satisfied that:
a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.
Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.
For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.
Without limiting subsection (5), the Minister may determine the following:
the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved work sponsor;
the method of any such advertising;
the period during which any such advertising must occur;
the duration of any such advertising.
(6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:
will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and
will set out any skills or experience requirements that are appropriate to the position.
(6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.
For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.
Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.
Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.
Definitions
In this section:
associated entity has the same meaning as in Part 2A of the regulations.
Australian permanent resident means an Australian permanent resident within the meaning of the regulations.
eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by another person if, at the time when the nomination is made:
the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and
the person is employed in the agricultural sector by the other person (or an associated entity of the other person); and
the temporary visa does not prohibit the person from performing that employment.
labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.
A person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection (2) of this section is in force in relation to the person.
The Minister may, in writing, exempt a person from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that:
(a) an event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and
the exemption is necessary or desirable in order to assist disaster relief or recovery.
In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following:
the number of individuals affected;
the extent to which the nature or extent of the disaster is unusual.
An exemption of a person under subsection (2):
may be expressed to apply in relation to:
a specified nomination by the person; or
a specified class of nominations by the person; and
(b) must be expressed to apply to a particular person specified in the exemption rather than a class of persons, despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901.
An exemption made under subsection (2) is not a legislative instrument.
Scope
This section applies to a nomination by a person, under section 140GB, if the person nominates:
a proposed occupation for the purposes of paragraph 140GB(1)(b); and
a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination.
Skill and occupational exemptions
The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
either or both of the following are required for the nominated position, in relation to the nominated occupation:
a relevant bachelor degree or higher qualification, other than a protected qualification;
5 years or more of relevant experience, other than protected experience; and
the nominated occupation is specified for the purposes of this subsection under subsection (4).
The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
either or both of the following are required for the nominated position, in relation to the nominated occupation:
a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification;
3 years or more of relevant experience, other than protected experience; and
the nominated occupation is specified for the purposes of this subsection under subsection (4).
Legislative instrument
The Minister may, by legislative instrument:
specify an occupation (or occupations) for the purposes of subsection (2); and
specify an occupation (or occupations) for the purposes of subsection (3).
(5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4).
Definitions
In this section:
AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003.
protected experience means experience in the field of engineering (including shipping engineering) or nursing.
protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing.
For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy.
Subdivision C—Sponsorship obligations
Note: A person (other than a Minister) who is a party to a work agreement is an approved work sponsor and must satisfy sponsorship obligations.
Requirement to satisfy sponsorship obligations
A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.
Work agreements and sponsorship obligations
However, if:
a person (other than a Minister) is or was a party to a work agreement; and
a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement;
then, the person must satisfy the sponsorship obligation as so varied.
If:
a person (other than a Minister) is or was a party to a work agreement; and
an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement;
then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement.
Sponsorship obligation regulations
The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.
Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.
Different kinds of sponsorship obligations may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
Subject to subsection (2), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved work sponsor:
paying a market salary rate (however described) to a visa holder;
paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing a former visa holder from Australia;
paying prescribed costs of the departure of a visa holder (or a former visa holder) from Australia;
complying with prescribed requirements to keep information, and provide information to the Minister;
notifying the Department of prescribed changes in the circumstances of the person, a visa holder or a former visa holder;
cooperating with the exercise of powers under or for the purposes of Subdivision F (which deals with inspector powers);
ensuring that a visa holder participates in an occupation, program or activity nominated by the person (including by preventing the on-hire of a visa holder);
requiring the person not to transfer, charge or recover prescribed costs;
requiring the person to meet prescribed training requirements.
For any particular matter mentioned in subsection (1), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:
all approved work sponsors or former approved work sponsors; or
a specified class (or classes) of approved work sponsors or former approved work sponsors, and not to all approved work sponsors or former approved work sponsors.
Subject to subsection (2B), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved family sponsor:
paying prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or a former visa holder;
complying with prescribed requirements to keep information and provide information to the Minister;
notifying the Minister of prescribed changes in the circumstances of the person, a visa holder or a former visa holder.
For any particular matter mentioned in subsection (2A), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:
all approved family sponsors or former approved family sponsors; or
a specified class (or classes) of approved family sponsors or former approved family sponsors.
Subsections (1) and (2A) do not limit the sponsorship obligations that may be prescribed for the purposes of subsection 140H(1).
If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of:
if a limit is prescribed by the regulations—that limit; and
the actual costs incurred by the Commonwealth.
Example: If the Commonwealth incurs costs in locating a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth).
The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.
(3) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount.
Subdivision D—Enforcement
Actions that may be taken in relation to approved sponsors
If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
the Minister may do one or more of the following:
if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;
if regulations are prescribed under section 140L, cancel the person’s approval as a work sponsor or family sponsor under subsection 140M(1);
apply for a civil penalty order;
accept an undertaking under section 114 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;
if the Minister considers that the person has breached such an undertaking—apply for an order under section 115 of the Regulatory Powers Act, for the purposes of this Subdivision;
the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;
an authorized officer may require and take a security under section 269 or enforce a security already taken under that section;
an authorised officer may give the person a compliance notice under section 140RB.
Actions that may be taken in relation to former approved sponsors
If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
the Minister may do one or more of the following:
if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval as a work sponsor or family sponsor;
apply for a civil penalty order;
accept an undertaking under section 114 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;
if the Minister considers that the person has breached such an undertaking—apply for an order under section 115 of the Regulatory Powers Act, for the purposes of this Subdivision;
the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;
an authorized officer may require and take a security under section 269 or enforce a security already taken under that section;
an authorised officer may give the person a compliance notice under section 140RB.
To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:
the Minister may:
bar an approved sponsor under section 140M from doing certain things; or
cancel a person’s approval as a work sponsor or family sponsor under section 140M; or
an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Publishing information about sanctions
The Minister must, subject to subsection (7), publish the information (including personal information) prescribed by the regulations if an action is taken under this section in relation to an approved sponsor or former approved sponsor who fails to satisfy an applicable sponsorship obligation.
The Minister is not required to observe any requirements of the natural justice hearing rule in publishing information under subsection (4).
No civil liability arises from action taken by the Minister in good faith in publishing information under subsection (4).
The regulations may prescribe circumstances in which the Minister is not required to publish information under subsection (4).
Circumstances in which the Minister may take action
The regulations may prescribe:
either or both of the following:
circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
the criteria to be taken into account by the Minister in determining what action to take under section 140M.
Circumstances in which the Minister must take action
The regulations may prescribe either or both of the following:
circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
Different circumstances and different criteria may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
Actions that may be taken in relation to approved sponsors
If regulations are prescribed under the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:section 140L,
cancelling the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs;
cancelling the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;
barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);
barring the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Action that may be taken in relation to former approved sponsors
If regulations are prescribed under the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).section 140L and a person was an approved sponsor,
The regulations may establish a process for the Minister to cancel the approval of a person as a work sponsor or family sponsor under section 140M.
The regulations may establish a process for the Minister to place a bar on a person under section 140M.
Different processes may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
If the regulations provide for notification by the Minister of the decision to take action under section 140M, then the following provisions of the ART Act do not apply to the decision:
section 267 (decision-maker must have regard to rules when giving notice of decision);
section 268 (requesting reasons for a reviewable decision from decision-maker).
The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140M.
The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar.
Different circumstances and different criteria may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
The regulations may establish a process for the Minister to waive a bar placed on a person under section 140M.
Different processes may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
A person contravenes this subsection if:
the regulations impose a sponsorship obligation on the person; and
the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations.
Civil penalty:
if the person is an approved work sponsor—240 penalty units; or
in any other case—60 penalty units.
A person contravenes this subsection if:
the person (other than a Minister) is a party to a work agreement; and
the terms of the work agreement:
vary a sponsorship obligation that would otherwise be imposed on the person by the regulations; or
impose an obligation, identified in the agreement as a sponsorship obligation, on the person; and
the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement.
Civil penalty: 240 penalty units.
Enforceable provision
(1) Section 140H is enforceable, in relation to a sponsorship obligation, under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Minister is an authorised person in relation to the provision mentioned in subsection (1).
The Minister may, in writing, delegate the Minister’s powers and functions under Part 6 of the Regulatory Powers Act to an authorised officer in relation to the provision mentioned in subsection (1).
The Minister may delegate a power or function under subsection (2A) only if the Minister is satisfied that the authorised officer has appropriate qualifications, training or experience to exercise the power or perform the function.
An authorised officer exercising powers or performing functions under a delegation under subsection (2A) must comply with any directions of the Minister.
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, an eligible court is a relevant court in relation to the provision mentioned in subsection (1).
Relationship with compliance notices
The authorised person in relation to the provision mentioned in subsection (1) must not accept an undertaking from a person in relation to a sponsorship obligation if that person has been given a notice under section 140RB in relation to a contravention relating to the sponsorship obligation.
Enforceable undertaking may be published on the internet
The authorised person in relation to the provision mentioned in subsection (1) may publish an undertaking given in relation to the provision on the Department’s website.
Extension to external Territories
Part 6 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1), extends to a Territory to which this Act extends.
Note: See section 7 of this Act.
Scope
This section applies if an authorised officer reasonably believes that a person who is or was an approved work sponsor has contravened subsection 140Q(1) or (2) (failing to satisfy sponsorship obligations).
Giving a compliance notice
(2) The authorised officer may give the person a notice (a compliance notice) specifying action that the person must, within such reasonable time as is specified in the notice, take or refrain from taking to address the contravention.
Note: The compliance notice may be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
The compliance notice may require the person to produce reasonable evidence of compliance with the notice.
The compliance notice must also:
set out the name of the person; and
set out the name of the authorised officer; and
set out a summary of the contravention; and
explain that a failure to comply with the notice may contravene a civil penalty provision; and
set out any other prescribed matters.
Person must comply with compliance notice
A person who is given a compliance notice must comply with the notice.
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 48 penalty units.
Effect of compliance with compliance notice
A person who complies with a compliance notice is not taken by that compliance to have admitted to the contravention in relation to which the notice is given.
Relationship with enforceable undertakings
An authorised officer must not give a person a compliance notice in relation to a contravention relating to a sponsorship obligation if:
the person has given an undertaking under section 140RA in relation to that sponsorship obligation; and
the undertaking has not been withdrawn.
Relationship with civil penalty provisions
The Minister must not apply for an order under subsection 486R(1) (civil penalty orders) in relation to a contravention of subsection 140Q(1) or (2) by a person if:
an authorised officer has given the person a compliance notice in relation to the contravention; and
either of the following subparagraphs applies:
the notice has not been withdrawn, and the person has complied with the notice;
the person has made an application to a court for judicial review of the decision to give the notice and the application has not been completely dealt with.
Subdivision E—Liability and recovery of amounts
(1) This section applies if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or Territory or another person (the payee) in relation to a sponsorship obligation.
The payee may recover the amount as a debt due to the payee in an eligible court.
To avoid doubt, an amount may be recovered under this section if proceedings for a civil penalty order are brought under Part 8D and discontinued or completed without the court making an order of a kind referred to in subsection 486S(4) in relation to the amount.
(4) For the purpose of paragraph (e) of the definition of eligible court, the regulations may prescribe a court of a State or Territory in which an amount may be recovered under this section.
A party to proceedings under section 140S may apply to the eligible court for an order under subsection (2).
If an application is made under subsection (1), the eligible court must, unless good cause is shown to the contrary, either:
order that there be included in the sum for which judgment is given interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between:
the date when the cause of action arose; and
the date as of which judgment is entered; or
without proceeding to calculate interest in accordance with paragraph (a)—order that there be included in the sum for which judgment is given, a lump sum instead of any such interest.
Subsection (2) does not:
authorise the giving of interest upon interest or of a sum instead of such interest; or
apply in relation to any debt upon which interest is payable as of right, whether because of an agreement or otherwise; or
authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.
A judgment debt under a judgment of an eligible court under section 140S carries interest:
from the date as of which the judgment is entered; and
(b) at the rate that would apply under Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies.section 52 of the
This section applies if:
a person brings proceedings under section 140S in a magistrates court; and
the person indicates, in a manner prescribed by the regulations or by rules of court relating to that court, that the person wants a small claims procedure to apply in relation to the proceeding.
The procedure is governed by the following conditions:
the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;
the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;
at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;
a person is not entitled to legal representation unless allowed by the court.
If the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged.
Despite paragraph (2)(d) and subsection (3):
in a case heard in a court of a State—if, in a particular proceeding (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law; and
in a case heard in a court of a Territory—the regulations may prohibit or restrict legal representation of the parties.
Where a debt, or other amount, that a person is required to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.
In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice.
Any liability created under this Division is in addition to any liability created under:
this or any other Act; or
regulations made under this or any other Act.
Subdivision F—Inspector powers
An inspector may exercise powers under this Subdivision for a purpose set out in section 140X.
Note: Inspectors include Fair Work Inspectors (see section 140V).
(2) A Fair Work Inspector may, subject to Fair Work Act 2009, exercise compliance powers under Subdivision D of Division 3 of Part 5-2 of that Act for the purposes of this Subdivision.section 706 of the
Note: Under paragraph 706(1)(d) of the Fair Work Act 2009, a Fair Work Inspector may exercise certain compliance powers for the purposes of a provision of another Act that confers functions or powers on Fair Work Inspectors.
Who is an inspector?
(1A) For the purposes of this Act, each of the following is an inspector:
(a) a person, or a member of a class of persons, appointed under subsection (1) (an appointed inspector);
a Fair Work Inspector.
Appointed inspectors
The Minister may, by written instrument:
appoint a person to be an inspector; or
appoint a class of persons to be inspectors.
An appointed inspector is appointed for the period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
An appointed inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment.
Fair Work Inspectors
An inspector who is a Fair Work Inspector has the powers conferred on an inspector by this Division or the regulations.
(5) A Fair Work Inspector continues to be an inspector for the purposes of this Act while he or she continues to be a Fair Work Inspector (under the Fair Work Act 2009).
Note: The Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised: see section 499.
General
An inspector’s identity card is:
for an appointed inspector—the identity card issued to the inspector under subsection (1); or
(b) for an inspector who is a Fair Work Inspector—the identity card issued to the inspector under the Fair Work Act 2009 (see section 702 of that Act).
Identity cards—appointed inspectors
The Minister must issue an identity card to an appointed inspector.
An identity card for an appointed inspector:
must be in the approved form and may include additional information that is not set out in the form; and
must contain a recent photograph of the inspector.
Identity card to be carried
An inspector must carry the identity card at all times when exercising powers as an inspector.
Offence
A person commits an offence if:
the person has been issued with an identity card under subsection (1); and
the person ceases to be an inspector; and
the person does not return his or her identity card to the Secretary within 14 days after ceasing to be an inspector.
Penalty: 1 penalty unit.
An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.
The powers of an inspector under this Subdivision may be exercised:
for the purpose of investigating whether a sponsorship obligation is being, or has been, complied with by a person who is or was an approved work sponsor; or
for the purpose of investigating whether a person who is or was an approved work sponsor has contravened subsection 140RB(5); or
for the purpose of investigating whether a person who is or was an approved work sponsor has committed an offence, or contravened a civil penalty provision, under Subdivision C, D, E or F of Division 12 of this Part; or
for a purpose prescribed by the regulations.
An inspector may exercise powers under this Subdivision:
at any time during working hours; or
at any other time, if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X.
An inspector may, without force, enter business premises or another place, if the inspector reasonably believes that there are records or documents relevant to the purposes referred to in section 140X on the premises or at the place, or accessible from a computer on the premises or at the place.
The inspector must, either before or as soon as practicable after entering those premises or that place, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises or place.
An inspector who enters premises or a place under section 140XB may exercise one or more of the following powers while on the premises or at the place:
inspect any work, process or object;
interview any person;
require a person to tell the inspector who has custody of, or access to, a record or document;
require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period;
inspect, and make copies of, any record or document that:
is kept on the premises or at the place; or
is accessible from a computer that is kept on the premises or at the place.
(2) A Fair Work Inspector who enters premises or a place under the Fair Work Act 2009 for any compliance purpose under section 706 of that Act may, for a purpose mentioned in section 140X of this Act, exercise any of the powers mentioned in subsection (1) of this section while on the premises or at the place.
Note: See also sections 140XG, 140XH and 140XI (which deal with self-incrimination and produced documents etc.).
(1) A person (the assistant) may accompany an inspector onto premises or to a place mentioned in subsection 140XC(1) to assist the inspector if:
for any inspector—the Secretary or Australian Border Force Commissioner is satisfied that:
the assistance is necessary and reasonable; and
the assistant has suitable qualifications and experience to properly assist the inspector; or
(b) for an inspector who is a Fair Work Inspector—the assistant is authorised to accompany the inspector onto the premises or to the place under Fair Work Act 2009 for any compliance purpose under section 706 of that Act.section 710 of the
The assistant:
may do such things on the premises or at the place as the inspector requires to assist the inspector to exercise powers under this Subdivision; but
must not do anything that the inspector does not have power to do.
Anything done by the assistant is taken for all purposes to have been done by the inspector.
An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision.
If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness.
A person contravenes this subsection if:
the inspector requires the person to do a thing referred to in subsection (1) or (2); and
the inspector advises the person that he or she may contravene a civil penalty provision if he or she fails to comply with the requirement; and
the inspector shows his or her identity card to the person; and
the person does not comply with the requirement.
Civil penalty: 60 penalty units.
Subsection (3) does not apply if the person has a reasonable excuse.
An inspector may require a person, by notice, to produce a record or document to the inspector.
The notice must:
be in writing; and
be served on the person; and
require the person to produce the record or document at a specified place within a specified period of at least 7 days.
The notice may be served by sending the notice to the person’s fax number.
A person contravenes this subsection if:
the person is served with a notice to produce under subsection (1); and
the person fails to comply with the notice.
Civil penalty: 60 penalty units.
Subsection (3) does not apply if the person has a reasonable excuse.
A person is not excused from producing a record or document under paragraph 140XC(1)(d), or subsection 140XF(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty.
However, in the case of an individual, none of the following are admissible in evidence against the individual in criminal proceedings:
the record or document produced;
producing the record or document;
any information, document or thing obtained as a direct or indirect consequence of producing the record or document;
except in proceedings for an offence against Criminal Code (false or misleading information or documents) in relation to the information or document.section 137.1 or 137.2 of the
The following are not admissible in evidence in criminal proceedings against an individual:
any record or document inspected or copied under paragraph 140XC(1)(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied;
any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document of which the individual had custody, or to which the individual had access, when it was inspected or copied under paragraph 140XC(1)(e).
If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may:
inspect, and make copies of, the record or document; and
keep the record or document for such period as is necessary.
While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:
the person who produced the record or document;
any person otherwise entitled to possession of the record or document;
a person authorised by the person referred to in paragraph (b).
Information to which this section applies
This section applies to the following information:
information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector under this Subdivision;
information acquired by a person in the course of assisting an inspector under section 140XD.
Disclosure that is necessary or appropriate, or likely to assist administration or enforcement
The Secretary or Australian Border Force Commissioner may disclose, or authorise the disclosure of, the information if the Secretary or Australian Border Force Commissioner reasonably believes:
that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under Division 3A of Part 2 of this Act; or
that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.
Subdivision G—Application of Division to partnerships and unincorporated associations
This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person, but with the changes set out in this section and sections 140ZC and 140ZD.
A sponsorship right that would otherwise be exercisable by the partnership is exercisable by each partner instead.
A sponsorship obligation that would otherwise be imposed on the partnership:
is imposed on each partner instead; but
may be discharged by any of the partners.
Subject to section 140ZC, the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation.
An offence against this Division that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:
did the relevant act or made the relevant omission; or
aided, abetted, counselled or procured the relevant act or omission; or
was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).
A civil penalty provision of this Division that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner).
If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to one-fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.
For the purposes of subsections (1) and (2), to establish that a partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner:
in the ordinary course of the business of the partnership; or
within the scope of the actual or apparent authority of the partner.
For the purposes of subsection (1), to establish that a partnership had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant partner had the relevant state of mind.
If a partnership ceases to exist, the persons who were partners immediately before the cessation must continue to satisfy any applicable sponsorship obligation.
Section 140ZB applies as if:
references to a partnership were to a partnership that ceases to exist; and
references to partners of the partnership were to the persons who were partners immediately before the cessation.
For the purpose of this section, a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership.
This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to an unincorporated association as if it were a person, but with the changes set out in this section and sections 140ZF and 140ZG.
A sponsorship right that would otherwise be exercisable by the unincorporated association is exercisable by each member of the association’s committee of management instead.
A sponsorship obligation that would otherwise be imposed on the unincorporated association:
is imposed on each member of the association’s committee of management instead; but
may be discharged by any of those members.
Subject to section 140ZF, the members are jointly and severally liable to pay an amount in relation to a sponsorship obligation.
An offence against this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:
did the relevant act or made the relevant omission; or
aided, abetted, counselled or procured the relevant act or omission; or
was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member).
A civil penalty provision of this Division that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member).
If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to one-fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.
For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant member of the association’s committee of management had the relevant state of mind.
If an unincorporated association ceases to exist, the persons who were members of the association’s committee of management immediately before the cessation must continue to satisfy any applicable sponsorship obligation.
Section 140ZE applies as if:
references to an unincorporated association were to an unincorporated association that ceases to exist; and
references to members of the association’s committee of management were to the persons who were members immediately before the cessation.
To avoid doubt, for the purpose of this section, an unincorporated association ceases to exist if the dissolution of the association does not result in the creation of another association.
Subdivision H—Miscellaneous
Personal information about approved work sponsors etc.
The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of an item of the following table to a person or body mentioned in column 3 of the item:
Personal information about approved family sponsors etc.
The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of an item of the following table to a person or body mentioned in column 3 of the item:
Regulations may prescribe circumstances for disclosure etc.
The regulations may prescribe circumstances in which the Minister may disclose the personal information under subsection (1) or (1A).
The regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed under subsection (1) or (1A).
Notice of disclosure
If the Minister discloses personal information under subsection (1) or (1A) (other than to an agency of the Commonwealth or a State or Territory prescribed by the regulations), the Minister must give written notice to the person about whom the information is disclosed of:
the disclosure; and
the details of the personal information disclosed.
Note: The Minister may also publish personal information relating to actions taken under section 140K (sanctions for failing to satisfy sponsorship obligations) (see subsection 140K(4)).
For the purposes of this Division, the Minister may request a person mentioned in column 2 of the following table in relation to an item to disclose to the Minister personal information of a prescribed kind about a person mentioned in column 3 of the table in relation to the item:
For the purposes of:
paragraph 6.2(b) of Australian Privacy Principle 6; and
a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of information by a person in response to a request under this section is taken to be a disclosure that is authorised by this Act.
Nothing in this section has the effect of authorising a disclosure that, despite subsection (2), is prevented by a law of the Commonwealth, a State or Territory.
If a person who is or was an approved work sponsor has not paid an amount in relation to a sponsorship obligation because the person does not know the location of the intended recipient, the person may pay the amount to the Commonwealth.
The Commonwealth holds the amount in trust for the intended recipient.
Payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid.
Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act.
This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
However, this Division does not make the Crown liable to be prosecuted for an offence.
To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.
A person is liable to pay nomination training contribution charge to the Commonwealth in relation to a nomination by the person under section 140GB if the nomination is a nomination of a kind prescribed by the regulations.
A person applying under the regulations, or in accordance with the terms of a work agreement, for approval of a nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a visa, is liable to pay nomination training contribution charge to the Commonwealth in relation to the nomination if:
the visa is of a kind (however described) prescribed by the regulations; and
the nomination is a nomination of a kind prescribed by the regulations.
The regulations may make provision for, or in relation to, all or any of the following matters:
when nomination training contribution charge is due and payable;
the method of paying nomination training contribution charge (including the currency in which the charge must be paid);
the remission or refund of nomination training contribution charge;
the overpayment or underpayment of nomination training contribution charge;
the payment of a penalty in relation to the underpayment of nomination training contribution charge;
the giving of information and keeping of records relating to a person’s liability to pay nomination training contribution charge.
For the purposes of paragraph (1)(e), the penalty payable must be a civil penalty not exceeding 60 penalty units.
If an amount of:
nomination training contribution charge; or
a penalty in relation to the underpayment of such a charge;
is due and payable to the Commonwealth, the amount is a debt due to the Commonwealth and may be recovered by action in a court of competent jurisdiction.
The Commonwealth is not liable to pay nomination training contribution charge that is payable under section 140ZM. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such charge.
The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.
Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law.
A direction under subsection (2) is not a legislative instrument.
(5) In subsections (1) and (2), Commonwealth includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.
This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
However, this Division does not make the Crown liable to be prosecuted for an offence.
To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.
Subdivision A—Preliminary
This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.
In this Division:
administration of criminal justice means:
an investigation to find out whether an offence has been committed; or
the prosecution of a person for an offence; or
the punishment by way of imprisonment of a person for the commission of an offence.
Australia means the migration zone.
authorised official means a person authorised under section 144 to be an authorised official for that State.
criminal justice certificate means:
a criminal justice entry certificate; or
a criminal justice stay certificate.
criminal justice entry certificate means:
a certificate given under section 145; or
a certificate given under subsection 146(1) and endorsed under subsection 146(2).
criminal justice entry visa has the meaning given by section 155.
criminal justice stay certificate means a certificate given under section 147 or 148.
criminal justice stay visa has the meaning given by section 155.
criminal justice stay warrant means a warrant described in section 151.
criminal justice visa has the meaning given by section 38.
State includes Territory.
The Minister may, in writing, delegate any of his or her powers under this Division to:
the Secretary of the Department; or
an SES employee, or acting SES employee, in the Department.
(2) Subject to subsection (3), the Minister may, in writing, delegate his or her power under Australian Federal Police Act 1979).section 147 to a commissioned police officer (within the meaning of the
A delegation under subsection (2) must provide that:
the power may only be exercised in relation to a person at a port; and
any certificate that is issued by the member is to remain in force for no longer than 5 days.
The Minister may, at any time, by written notice, revoke a certificate issued by a person exercising a power delegated under subsection (2).
The Minister may, in writing, appoint as an authorised official for a State for the purposes of this Division:
the Attorney-General of the State; or
a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions; or
the highest ranking member of the police force of the State.
Subdivision B—Criminal justice certificates for entry
If the Minister considers that:
the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
the presence of the non-citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and
satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;
the Minister may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice.
For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
If an authorised official for a State considers that:
the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;
the official may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice by the State.
If:
a certificate has been given under subsection (1) about a non-citizen; and
the Minister considers that the temporary presence of the non-citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia;
the Minister may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division.
For the purposes of paragraph (1)(b), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
Subdivision C—Criminal justice certificates etc. staying removal or deportation
If:
an unlawful non-citizen is to be, or is likely to be, removed or deported; and
the Minister considers that the non-citizen should remain in Australia temporarily for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
the Minister considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;
the Minister may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice.
For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
If:
an unlawful non-citizen is to be, or is likely to be, removed or deported; and
an authorised official for a State considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;
the official may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice by the State.
For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
A criminal justice stay certificate for a non-citizen may be given even though an application for a visa for the non-citizen has been made but not finalised.
If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.
If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.
If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported.
If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non-citizen while the warrant is in force.
If:
a criminal justice stay certificate or a criminal justice stay warrant about a non-citizen is in force; and
the non-citizen does not have a visa to remain in Australia;
the certificate or warrant does not limit any power under this Act relating to the detention of the non-citizen.
Subject to subsection (2), if:
this Act requires the removal or deportation of a non-citizen; and
there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen;
any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.
Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
An officer is not liable to any civil or criminal action for doing in good faith, or failing in good faith to do, any act or thing for the purpose of exercising a power under this Act to keep a person who is the subject of a criminal justice stay certificate or criminal justice stay warrant in immigration detention.
Subdivision D—Criminal justice visas
A criminal justice visa may be a visa permitting a non-citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa.
A criminal justice visa may be a visa permitting a non-citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.
A criterion for a criminal justice entry visa for a non-citizen is that a criminal justice entry certificate about the non-citizen is in force.
A criterion for a criminal justice stay visa for a non-citizen is that either:
a criminal justice stay certificate about the non-citizen is in force; or
a criminal justice stay warrant about the non-citizen is in force.
The criteria for a criminal justice visa for a non-citizen are, and only are:
the criterion required by section 156 or 157; and
the criterion that the Minister, having had regard to:
the safety of individuals and people generally; and
in the case of a criminal justice entry visa, arrangements to ensure that if the non-citizen enters Australia, the non-citizen can be removed; and
any other matters that the Minister considers relevant;
has decided, in the Minister’s absolute discretion, that it is appropriate for the visa to be granted.
If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non-citizen is in force, the Minister may consider the grant of a criminal justice visa for the non-citizen.
If the Minister, after considering the grant of a criminal justice visa for a non-citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion:
grant it by causing a record of it to be made; and
give such evidence of it as the Minister considers appropriate.
The regulations may provide that criminal justice visas are subject to specified conditions.
It is a condition of a criminal justice entry visa for a non-citizen that the non-citizen must not do any work in Australia, whether for reward or otherwise.
In subsection (2):
work, in relation to a non-citizen, does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non-citizen, including, if those purposes are or include the imprisonment of the non-citizen, work as a prisoner.
A criminal justice entry visa for a non-citizen is permission for the non-citizen to travel to and enter and remain in Australia while it is in effect.
A criminal justice stay visa for a non-citizen:
is permission for the non-citizen to remain in Australia while it is in effect; and
if the non-citizen is in immigration detention, entitles the non-citizen to be released from that detention.
A criminal justice visa for a person does not prevent the non-citizen leaving Australia.
Subsection (3) does not limit the operation of any order or warrant of a court.
The holder of a criminal justice entry visa may not apply for a visa other than a protection visa.
If a non-citizen who has held a criminal justice entry visa remains in Australia when the visa is cancelled, the non-citizen may not make an application for a visa other than a protection visa.
Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas
If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:
if it was given under the Minister; orsection 145 or 147—
if it was given under section 146 or 148—an authorised official;
is to cancel it.
Before cancelling a certificate given under the Secretary:section 146 or 148, an authorised official is, an adequate time before doing so, to tell
when it is to be cancelled; and
the expected whereabouts of the non-citizen when it is cancelled; and
the arrangements for the non-citizen’s departure from Australia.
If:
the presence in Australia of a non-citizen in respect of whom a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and
if the warrant is to expire at a certain time—that time has not been reached;
a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation.
The applicant for a criminal justice stay warrant in respect of a non-citizen is to tell the Secretary a reasonable time before the warrant expires:
the time it will expire; and
the expected whereabouts of the non-citizen at the time of expiry; and
the arrangements for the non-citizen’s departure from Australia.
An applicant for the cancellation of a criminal justice stay warrant is to tell the Secretary, as soon as practicable:
the time of cancellation for which application will be made; and
if the time of cancellation is different from that applied for, the time of cancellation; and
the expected whereabouts of the non-citizen at the expected time, and, if paragraph (b) applies, the time of cancellation; and
the arrangements for the non-citizen’s departure from Australia.
If:
a criminal justice certificate is cancelled; or
a criminal justice stay warrant is cancelled or expires;
any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.
In this Division:
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
enforcement visa (environment matters) means an enforcement visa that is granted by section 164BA.
enforcement visa (fisheries matters) means an enforcement visa that is granted by section 164B.
environment detention means detention under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
fisheries detention means detention under: (a) Schedule 1A to the Fisheries Management Act 1991; or (b) Schedule 2 to the Torres Strait Fisheries Act 1984.
(a) Schedule 1A to the Fisheries Management Act 1991; or
(b) Schedule 2 to the Torres Strait Fisheries Act 1984.
Non-citizen on foreign vessel outside migration zone
(1) A non-citizen on a foreign vessel outside the migration zone is granted an enforcement visa when the vessel is detained under Maritime Powers Act 2013 in relation to a fisheries detention offence.section 69 of the
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Non-citizen in migration zone
(2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained under Schedule 1A to the Fisheries Management Act 1991 or Schedule 2 to the Torres Strait Fisheries Act 1984.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Non-citizen in prescribed circumstances
(3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Non-citizen on foreign vessel in prescribed circumstances
(4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who is on a foreign vessel when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the vessel. The visa is granted at the time the power is exercised.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Enforcement visas granted by force of this section
To avoid doubt, an enforcement visa is granted by force of this section.
Note: No administrative action under this Act is necessary to grant the visa.
Exception if Minister’s declaration in force
Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to:
the non-citizen; or
a class of persons of which the non-citizen is a member.
Declaration
The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
Section does not apply to Australian residents
(8) This section does not apply to non-citizens who are Australian residents as defined in the Fisheries Management Act 1991.
Non-citizen on vessel (environment matters) outside migration zone
A non-citizen on a vessel (environment matters) outside the migration zone is granted an enforcement visa when, because an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft has reasonable grounds to suspect that the vessel has been used or otherwise involved in the commission of an environment detention offence, the environment officer, maritime officer or person in command:
(a) exercises his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(b) makes a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or
(c) exercises powers under Maritime Powers Act 2013 in relation to the vessel;section 69 of the
whichever occurs first.
Non-citizen in migration zone
Note 1: Under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may bring a vessel into the migration zone. Under paragraph 403(3)(b) of that Act, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may require the person in charge of a vessel to bring the vessel into the migration zone.
Note 2: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
(2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by an environment officer under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Non-citizen in prescribed circumstances
(3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when an environment officer or a maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Non-citizen on vessel or aircraft in prescribed circumstances
(4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who is on a vessel (environment matters) or a foreign aircraft (environment matters) when an environment officer or maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the vessel or aircraft. The visa is granted at the time the power is exercised.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).
Enforcement visas granted by force of this section
To avoid doubt, an enforcement visa is granted by force of this section.
Note: No administrative action under this Act is necessary to grant the visa.
Exception if Minister’s declaration in force
Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to:
the non-citizen; or
a class of persons of which the non-citizen is a member.
Declaration
The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
Section does not apply to Australian residents
(8) This section does not apply to non-citizens who are Australian residents as defined in Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
Enforcement visa (fisheries matters)—non-citizen in fisheries detention
The enforcement visa (fisheries matters) of a non-citizen who is in fisheries detention ceases to be in effect:
at the time the non-citizen is released, or escapes, from fisheries detention; or
at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or
on the occurrence of a prescribed event;
whichever occurs first.
Enforcement visa (fisheries matters)—non-citizen not in fisheries detention
The enforcement visa (fisheries matters) of a non-citizen who is not in fisheries detention ceases to be in effect:
at the time a decision is made not to charge the non-citizen with a fisheries detention offence; or
at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or
on the occurrence of a prescribed event;
whichever occurs first.
Enforcement visa (environment matters)—non-citizen in environment detention
The enforcement visa (environment matters) of a non-citizen who is in environment detention ceases to be in effect:
at the time the non-citizen is released, or escapes, from environment detention; or
at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or
on the occurrence of a prescribed event;
whichever occurs first.
Enforcement visa (environment matters)—non-citizen not in environment detention
The enforcement visa (environment matters) of a non-citizen who is not in environment detention ceases to be in effect:
at the time a decision is made not to charge the non-citizen with an environment detention offence; or
at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or
on the occurrence of a prescribed event;
whichever occurs first.
The holder of an enforcement visa may not apply for a visa other than a protection visa while he or she is in Australia.
While a non-citizen who has held an enforcement visa remains in Australia when the visa ceases to be in effect, the non-citizen may not apply for a visa other than a protection visa.
In this Division:
clearance authority means:
a clearance officer; or
an authorised system.
clearance officer means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.
eligible passport means a passport of a kind specified in a determination under section 175A.
on-port means a port in Australia to which the person will travel after entering Australia at another port.
overseas vessel means:
a vessel on which persons travel from outside Australia to a port and then to an on-port or ports; or
a vessel on which persons travel from a port to another port or ports and then to a place outside Australia.
Requirement to be immigration cleared
A person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay:
present the following evidence (which might include a personal identifier) to a clearance authority:
if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;
if the person is a non-citizen—evidence of the person’s identity and of a visa that is in effect and is held by the person; and
provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
comply with any requirement, made by a clearance officer under section 257A before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers to a clearance authority; and
if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face.
Note: A person might be taken to have complied with this section under subsection 167(3) or (4) or might not be required to comply under section 168 or 169.
Who may use an authorised system
A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
the person holds an eligible passport; and
either:
before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) of this section (other than a passenger card) to a clearance officer; or
if subparagraph (i) of this paragraph applies—a clearance officer determines that the person has complied with subsection (1) of this section.
Complying with paragraphs (1)(a) and (b)
Subject to section 167, a person is to comply with paragraphs (1)(a) and (b) of this section in a prescribed way.
A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.
Subject to this section, a person required to comply with section 166 who enters Australia at a port must comply:
if paragraph (b) or (c) does not apply—at that port; or
if the person is required by an officer to comply at a particular on-port—at that on-port; or
if the person is allowed by an officer to comply at the port or a particular on-port—at either of them.
Subject to subsection (4), a person required to comply with section 166 who enters Australia otherwise than at a port must comply at a prescribed place within a prescribed period after entering.
If:
a person proposes to enter Australia; and
with the permission of a clearance officer, complies with paragraphs 166(1)(a), (b) and (c) on the vessel on which the person travels to Australia and before entering Australia;
the person is taken to have complied with section 166.
A person who travels to Australia on a pre-cleared flight:
must comply with paragraphs 166(1)(a) and (b) before beginning the flight; and
if he or she so complies, is taken to have complied with section 166.
An allowed inhabitant of the Protected Zone who enters a protected area in connection with the performance of traditional activities is not required to comply with section 166.
If an allowed inhabitant of the Protected Zone:
enters a protected area in connection with the performance of traditional activities; and
goes from the protected area to a part of the migration zone outside that area;
he or she must comply with section 166 at a prescribed place within a prescribed period.
A person in a prescribed class is not required to comply with section 166.
If:
a person goes outside the migration zone; and
under section 80 is not taken to leave Australia;
the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.
International passenger cruise ships
However, subsection (1) does not apply if the person goes outside the migration zone on an international passenger cruise ship (see subsection (4)).
Note: The effect of this subsection is that people on international passenger cruise ships are required to be immigration cleared under the Minister or Secretary determines otherwise under subsection (3) of this section).section 166 (unless
However, the Minister or Secretary may, in writing, determine that, despite subsection (2), subsection (1) does apply to a class of persons that includes the person.
(4) In this section, a ship is an international passenger cruise ship if:
the ship has sleeping facilities for at least 100 persons (other than crew members); and
the ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and
that service:
is provided in return for a fee payable by persons using the service; and
is available to the general public.
A determination made under subsection (3) is not a legislative instrument.
Persons on overseas vessels may be required to present evidence of identity
A person, whether a citizen or a non-citizen, who travels, or appears to intend to travel, on an overseas vessel from a port to another port may be required by a clearance officer at either port or by officers at both ports:
to present to a clearance authority prescribed evidence (which might include a personal identifier) of the person’s identity; and
to provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
to comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and
if under paragraph (a) the person presents evidence to an authorised system—to provide to the authorised system a photograph or other image of the person’s face.
A person is to comply with paragraphs (1)(a) and (b) in a prescribed way.
Who may use an authorised system
(2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
the person holds an eligible passport; and
either:
before the person leaves the port at which the requirement is made, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or
if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).
If a person:
cannot comply with section 166 by presenting evidence; and
requests the Department to assist him or her to obtain that evidence;
that assistance may be given but only on payment of, or agreement to pay, a prescribed fee to meet the cost of doing so.
When a person is immigration cleared
A person is immigration cleared if, and only if:
the person:
enters Australia at a port; and
complies with section 166; and
leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
the person:
enters Australia otherwise than at a port; and
complies with section 166; and
leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
the person:
enters Australia by virtue of the operation of section 10; and
at the time of the person’s birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or
the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or
the person is in a prescribed class of persons.
When a person is in immigration clearance
A person is in immigration clearance if the person:
is with an officer or at an authorised system for the purposes of section 166; and
has not been refused immigration clearance.
When a person is refused immigration clearance
A person is refused immigration clearance if the person:
is with a clearance officer for the purposes of section 166; and
satisfies one or more of the following subparagraphs:
the person has his or her visa cancelled;
the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);
the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b);
the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.
When a person bypasses immigration clearance
A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:
the person:
enters Australia at a port; and
is required to comply with section 166; and
leaves that port without complying; or
the person:
enters Australia otherwise than at a port; and
is required to comply with section 166; and
does not comply within the prescribed period for doing so.
If the holder of a visa enters Australia in a way that contravenes section 43, or regulations to which that section is subject, the visa ceases to be in effect.
A maritime crew visa held by a non-citizen does not cease to be in effect under subsection (1) if:
the non-citizen travels to and enters Australia by air; and
at the time the non-citizen travels to and enters Australia, the non-citizen holds another class of visa that is in effect.
To avoid doubt, a non-citizen child who is taken to have been granted a visa or visas, at the time of the child’s birth, by virtue of the operation of section 78, is not to be taken, by virtue of that birth, to have entered Australia in a way that contravenes section 43 or regulations to which that section is subject.
If the holder of a visa:
is required to comply with section 166; and
does not comply;
the visa ceases to be in effect.
Departing persons may be required to present evidence etc.
A clearance officer may require a person who is on board, or about to board, a vessel that is due to depart from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia) to:
present the following evidence (which might include a personal identifier) to a clearance authority:
if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;
if the person is a non-citizen—evidence of the person’s identity and permission to remain in Australia; and
provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and
if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face.
A person is to comply with paragraphs (1)(a) and (b) in a prescribed way.
Who may use an authorised system
(2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
the person holds an eligible passport; and
either:
before the vessel leaves Australia, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or
if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).
For the purposes of this Division, the Minister or the Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport.
Collection of information
If a person presents or provides a document to a clearance authority under this Division, the clearance authority may collect information (including personal identifiers) in the document.
Access to, and disclosure of, personal information
The following provisions:
section 336D (which authorises access to identifying information);
section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.
Effect on interpretation
This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
This Division is enacted because the Parliament considers that it is in the national interest that each non-citizen who is a designated person should be kept in immigration detention until he or she:
leaves Australia; or
is given a visa.
In this Division:
boat means a vessel of any description, but does not include an aircraft.
commencement means the commencement of this Division.
designated person means a non-citizen who: has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and has not presented a visa; and is in the migration zone; and has not been granted a visa; and is a person to whom the Department has given a designation by: determining and recording which boat he or she was on; and giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;
has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and
has not presented a visa; and
is in the migration zone; and
has not been granted a visa; and
is a person to whom the Department has given a designation by:
determining and recording which boat he or she was on; and
giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;
and includes a non-citizen born in Australia whose mother is a designated person.
entry application means an application for: a determination by the Minister that the person is a refugee; or a visa for the person.
a determination by the Minister that the person is a refugee; or
a visa for the person.
Subject to subsection (2), after commencement, a designated person must be kept in immigration detention.
A designated person is to be released from immigration detention if, and only if, he or she is:
removed from Australia under section 181; or
granted a visa under section 65 or 351.
This section is subject to section 182.
To avoid doubt and despite section 182, if subsection 181(3) applies to a designated person, the person must be kept in immigration detention until the person is removed from Australia under that subsection.
If, immediately after commencement, a designated person is in a place described in paragraph 11(a) (as in force at that time) or a processing area, he or she then begins to be in immigration detention for the purposes of section 178.
If, immediately after commencement, a designated person is in the company of, and restrained by, a person described in paragraph 11(b) (as in force at that time), the designated person then begins to be in immigration detention for the purposes of section 178.
If a designated person is not in immigration detention immediately after commencement, an officer may, without warrant:
detain the person; and
take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178.
Without limiting the generality of subsection (1), that subsection even applies to a designated person who was held in a place described in paragraph 11(a) (as in force at that time) or a processing area before commencement and whose release was ordered by a court.
If a designated person escapes from immigration detention after commencement, an officer may, without warrant:
detain the person; and
take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178.
An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed.
An officer must remove a designated person from Australia as soon as practicable if:
the person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period; and
there has not been an entry application for the person.
An officer must remove a designated person from Australia as soon as practicable if:
there has been an entry application for the person; and
the grant of the visa has been refused; and
all appeals against, or reviews of, the refusal (if any) have been finalised.
If:
2 designated persons are liable to be removed from Australia under this section; and
they are the parents of another designated person in Australia who is under 18;
the other designated person is to be removed from Australia.
If:
a designated person is liable to be removed from Australia under this section; and
he or she is the only parent in Australia of another designated person in Australia who is under 18;
the other designated person is to be removed from Australia.
If:
2 designated persons are liable to be removed from Australia under this section; and
they have the care and control of another designated person in Australia who:
is under 18; and
does not have a parent who is a designated person;
the other designated person is to be removed from Australia.
If:
a designated person is liable to be removed from Australia under this section; and
he or she is the only person who has the care and control of another designated person in Australia who:
is under 18; and
does not have a parent who is a designated person;
the other designated person is to be removed from Australia.
This section is subject to section 182.
Sections 178 and 181 cease to apply to a designated person who was in Australia on 27 April 1992 if the person has been in application immigration detention after commencement for a continuous period of, or periods whose sum is, 273 days.
Sections 178 and 181 cease to apply to a designated person who was not in Australia on 27 April 1992, if:
there has been an entry application for the person; and
the person has been in application immigration detention, after the making of the application, for a continuous period of, or periods whose sum is, 273 days.
For the purposes of this section, a person is in application immigration detention if:
the person is in immigration detention; and
an entry application for the person is being dealt with;
unless one of the following is happening:
the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;
the dealing with the application is at a stage whose duration is under the control of the person or of an adviser or representative of the person;
court or tribunal proceedings relating to the application have been begun and not finalised;
continued dealing with the application is otherwise beyond the control of the Department.
To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph (3)(b) because only there could be an appeal against, or an application for the review of, the refusal.
If:
an entry application for a designated person has been refused; and
because of a direction or decision of a court or tribunal, the application is required to be considered further;
whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before.
If:
an entry application for a designated person has been refused; and
apart from this subsection, section 178 would cease to apply to the person; and
the person begins court or tribunal proceedings in relation to the refusal;
that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before.
A court is not to order the release from immigration detention of a designated person.
This Division does not affect the other status that a designated person has under this Act except so far as the status is inconsistent with section 178, 179, 180, 181 or 183.
This Division does not affect the rights of a designated person under this Act except so far as they, or their exercise, are inconsistent with section 178, 179, 180, 181 or 183.
This Division does not affect any application made by a designated person under this Act except so far as the application, or the success of the application, is inconsistent with section 178, 179, 180, 181 or 183.
If this Division is inconsistent with another provision of this Act or with another law in force in Australia, whether written or unwritten, other than the Constitution:
this Division applies; and
the other law only applies so far as it is capable of operating concurrently with this Division.
A statement by an officer, on oath or affirmation, that the Department has given a particular person a designation described in paragraph (e) of the definition of designated person in section 177 is conclusive evidence that the Department has given that person that designation.
Subdivision A—General provisions
Officer may require evidence
An officer may require a person whom the officer knows or reasonably suspects is a non-citizen to:
present to the officer evidence (which might include a personal identifier) of being a lawful non-citizen; or
present to the officer evidence (which might include a personal identifier) of the person’s identity.
The person must comply with the requirement within a period specified by the officer, being a prescribed period or such further period as the officer allows.
Regulations prescribing a period for compliance may prescribe different periods and the circumstances in which a particular prescribed period is to apply which may be:
when the requirement is oral; or
when the requirement is in writing.
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
If an officer reasonably suspects that a person in Australia but outside the migration zone:
is seeking to enter the migration zone (other than an excised offshore place); and
would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.
If an officer knows or reasonably suspects that a person in a protected area:
is a citizen of Papua New Guinea; and
is an unlawful non-citizen;
the officer may detain the person.
If an officer reasonably suspects that a person in Australia but outside the migration zone:
is seeking to enter an excised offshore place; and
would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5) In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
Note: See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).
For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person:
was required to comply with section 166; and
did one or more of the following:
bypassed, attempted to bypass, or appeared to attempt to bypass, immigration clearance;
went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented;
if a non-citizen—went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided;
if a non-citizen—went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer.
For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if:
that person fails to provide a personal identifier, under section 257A, of a type or types prescribed; and
prescribed circumstances exist.
A person detained because of section 190 must be released from immigration detention if:
the person gives evidence of his or her identity and Australian citizenship; or
an officer knows or reasonably believes that the person is an Australian citizen; or
the person complies with section 166 and either:
presents to a clearance officer evidence of being a lawful non-citizen; or
is granted a visa.
A person detained because of subsection 190(2) must be released from immigration detention if:
the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non-citizen; or
the person gives evidence of his or her identity and Australian citizenship; or
an officer knows or reasonably believes that the person is an Australian citizen; or
the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA.
Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA, the officer may detain the non-citizen.
An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:
attempt to evade the officer and other officers; or
otherwise not co-operate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa.
An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.
A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA.
A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2).
If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.
In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:
if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;
any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee’s behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;
any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;
any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;
any time during which the questioning is suspended or delayed because of the detainee’s intoxication;
any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.
Note: Section 5G may be relevant for determining relationships for the purposes of paragraph (7)(b).
(8) In paragraph (7)(b), guardian includes a person who is responsible, under a parenting order (within the meaning of the Family Law Act 1975), for the detainee’s long-term care, welfare and development.
Sections 194 and 195 do not apply to a person:
detained under subsection 189(1):
on being refused immigration clearance; or
after bypassing immigration clearance; or
after being prevented from leaving a vessel under section 249; or
because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or
detained under subsection 189(1) who:
has entered Australia after 30 August 1994; and
has not been immigration cleared since last entering; or
detained under subsection 189(2), (3), (3A) or (4); or
detained under section 189 who:
held an enforcement visa that has ceased to be in effect; and
has not been granted a substantive visa since the enforcement visa ceased to be in effect.
Apart from the Minister or any officer to:section 256, nothing in this Act or in any other law (whether written or unwritten) requires
give a person covered by subsection (1) an application form for a visa; or
advise a person covered by subsection (1) as to whether the person may apply for a visa; or
give a person covered by subsection (1) any opportunity to apply for a visa; or
allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas.
If:
(a) a person covered by subsection (1) has not made a complaint in writing to the Australian Human Rights Commission, paragraph 20(6)(b) of the Australian Human Rights Commission Act 1986 does not apply to the person; and
(c) a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person.
This section applies to a person covered by subsection (1) for as long as the person remains in immigration detention.
As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:
the provisions of sections 195 and 196; and
if a visa held by the person has been cancelled under section 137J—the provisions of section 137K.
A detainee may apply for a visa:
within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.
A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
Persons to whom section applies
This section applies to a person who is in detention under section 189.
Minister may grant visa
If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
states that the Minister has granted a visa under this section; and
sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
A statement under subsection (6) in relation to a decision to grant a visa is not to include:
the name of the person to whom the visa is granted; or
any information that may identify the person to whom the visa is granted; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
he or she is removed from Australia under section 198 or 199; or
an officer begins to deal with the non-citizen under subsection 198AD(3); or
he or she is deported under section 200; or
he or she is granted a visa.
To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
To avoid doubt, subsection (4) or (4A) applies:
whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
whether or not a visa decision relating to the person detained is, or may be, unlawful.
Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
This section has effect despite any other law.
In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
If a non-citizen:
was in immigration detention; and
escaped from that detention; and
was taken back into that detention;
then, for the purposes of sections 194 and 195, the non-citizen is taken not to have ceased to be in immigration detention.
Subdivision B—Residence determinations
This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
A residence determination must:
specify the person or persons covered by the determination by name, not by description of a class of persons; and
specify the conditions to be complied with by the person or persons covered by the determination.
A residence determination must be made by notice in writing to the person or persons covered by the determination.
Act and regulations apply as if person were in detention in accordance with section 189
While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.
If:
a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and
the person is not breaching any condition specified in the determination by staying there;
then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.
Certain provisions do not apply to people covered by residence determinations
Subsection (1):
does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and
does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.
What constitutes release from immigration detention?
If:
a residence determination is in force in relation to a person; and
a provision of this Act requires the person to be released from immigration detention, or this Act no longer requires or permits the person to be detained;
then, at the time when paragraph (b) becomes satisfied, the residence determination, so far as it covers the person, is revoked by force of this subsection and the person is, by that revocation, released from immigration detention.
Note: Because the residence determination is revoked, the person is no longer subject to the conditions specified in the determination.
If a person is released from immigration detention by operation of subsection (4), the Secretary must, as soon as possible, notify the person that he or she has been so released.
Secretary must ensure section 256 complied with
The Secretary must ensure that a person covered by a residence determination is given forms and facilities as and when required by section 256.
If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect (subject to subsection (2)).
Note 1: If a person covered by a residence determination does not comply with a condition specified in the determination, the Minister may (subject to the public interest test) decide to revoke the determination, or to vary the determination by altering the conditions, whether by omitting or amending one or more existing conditions or by adding one or more additional conditions.
Note 2: If the Minister revokes a residence determination (without making a replacement determination) and a person covered by the determination is a person whom immigration detention in subsection 5(1).section 189 requires to be detained, the person will then have to be taken into detention at a place that is covered by the definition of
Any variation of a residence determination must be such that the determination, as varied, will comply with subsections 197AB(1) and (2).
A revocation or variation of a residence determination must be made by notice in writing to the person or persons covered by the determination.
The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.
The power to make, vary or revoke a residence determination may only be exercised by the Minister personally.
If the Minister makes a residence determination, he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (2)):
states that the Minister has made a determination under this section; and
sets out the Minister’s reasons for making the determination, referring in particular to the Minister’s reasons for thinking that the determination is in the public interest.
A statement under subsection (1) in relation to a residence determination is not to include:
the name of any person covered by the determination; or
any information that may identify any person covered by the determination; or
the address, name or location of the place specified in the determination; or
any information that may identify the address, name or location of the place specified in the determination; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the determination—the name of that other person or any information that may identify that other person.
A statement under subsection (1) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the residence determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the residence determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
A detainee must not escape from immigration detention.
Penalty: Imprisonment for 5 years.
A detainee commits an offence if he or she manufactures, possesses, uses or distributes a weapon.
Penalty: Imprisonment for 5 years.
In this section:
weapon includes:
a thing made or adapted for use for inflicting bodily injury; or
a thing where the detainee who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury.
Subdivision A—Removal
For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
the non-citizen has made a valid application for a protection visa that has been finally determined; and
in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
none of the following apply:
the decision in which the protection finding was made has been quashed or set aside;
a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
the non-citizen has asked the Minister, in writing, to be removed to the country.
(4) A protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) A protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
the non-citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
the non-citizen:
would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non-citizen; and
satisfied the criterion in subsection 36(1C);
the non-citizen:
satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a);
the non-citizen:
satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non-citizen;
the non-citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non-citizen.
(6) A protection finding is also made for a non-citizen with respect to a country if:
the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
a protection finding within the meaning of subsection (4) or (5) was made for the non-citizen with respect to another country.
(7) A protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the regulations.
For the purposes of subsection (3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
For the purposes of subsection (5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.
For the purposes of subparagraph (3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.
This section applies in relation to a non-citizen if:
the non-citizen is:
an unlawful non-citizen; or
a removal pathway non-citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1); and
the non-citizen has made a valid application for a protection visa that has been finally determined; and
in the course of considering the application, a protection finding, within the meaning of subsection 197C(4), (5), (6) or (7), was made for the non-citizen with respect to a country (whether or not the protection visa was refused or was granted and has since been cancelled).
If the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.
A decision made under subsection (2) is a decision of a kind referred to in subparagraph 197C(3)(c)(ii), whether it is made in relation to:
an unlawful non-citizen; or
a removal pathway non-citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1).
For the purposes of subsection (2), if a non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
If the Minister makes a decision under subsection (2) in relation to a non-citizen, the Minister must, in writing, notify the non-citizen of the following matters:
the decision;
the reasons (other than non-disclosable information) for the decision;
that the decision is reviewable by the ART;
the period within which an application for review can be made;
who can apply for review;
where the application for review can be made.
Note: For the method by which the notification may be given, see section 494A.
Failure to comply with subsection (4) in relation to a decision does not affect the validity of the decision.
For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:
the period within which an application for review of the decision under Part 5 can be made has ended without an application for review having been properly made;
an application for review of the decision under Part 5 was properly made within the period but has been withdrawn;
the decision is affirmed (or taken to have been affirmed) on review by the ART.
Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to a decision under subsection (2) of this section.
For the purposes of the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non-citizen.section 198, it is irrelevant whether
To avoid doubt:
an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unlawful non-citizen; andsection 198 arises irrespective of whether
the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non-citizen is irrelevant to whether or not the removal of the unlawful non-citizen is reasonably practicable for the purposes of section 198.
Subsection (1) applies whether a request is made by:
the unlawful non-citizen; or
an officer of the Department; or
any other person.
Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of duty to remove unlawful non-citizens
Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unlawful non-citizen, section 198 does not require or authorise an officer to remove the non-citizen from Australia during the period covered by subsection (6).
Note: Despite this subsection, an unlawful non-citizen who asks the Minister, in writing, to be removed, must be removed under subsection 198(1) (see subsection (11) of this section).
Period during which duty to remove is suspended
(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unlawful non-citizen, unless:
before the end of that 6 month period, the unlawful non-citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or
the period ends earlier under subsection (7).
For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:
the end of the day the Minister decides not to exercise the Ministerial intervention power in relation to the unlawful non-citizen;
the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non-citizen;
if the Minister exercises the power in relation to the non-citizen, and subsection (8) specifies a day—the end of that day;
if the Minister exercises the power in relation to the non-citizen but the exercise does not result in the non-citizen being able to make a visa application—the end of the day that the Minister exercises the power.
For the purposes of paragraph (7)(c), this subsection specifies the following days:
in a case where, as a consequence of the exercise of the Ministerial intervention power, the unlawful non-citizen may make a visa application within a specified period—the last day of the period in which the non-citizen could make the visa application;
in any other case where, as a consequence of the exercise of the power, the non-citizen may make a visa application—whichever of the following days occurs first:
the last day of the period determined by the Minister in which the non-citizen could make the visa application;
the day that is 3 months after the Minister exercises the power.
Working out start day for certain requests
(9) If the Minister decides to consider whether to exercise a Ministerial intervention power in relation to a particular category of requests for such exercise by unlawful non-citizens, then, for the purposes of subsection (6), the start day, in relation to a particular unlawful non-citizen, is the day that the non-citizen’s request is received, in writing, by the Minister.
Scope of suspension of duty to remove unlawful non-citizen
To avoid doubt, subsection (5) of this section:
prevents the removal of an unlawful non-citizen during the period covered by subsection (6); but
does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the eventual removal of the non-citizen after the period ends.
Example: The Minister could give the unlawful non-citizen a removal pathway direction under section 199C during the period covered by subsection (6).
Unlawful non-citizen must be removed at non-citizen’s request
Despite subsection (5), an officer is required and authorised to remove an unlawful non-citizen who asks the Minister, in writing, to be so removed under subsection 198(1).
Removal on request
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Removal of transitory persons brought to Australia for a temporary purpose
In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).
Note 1: Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).
Note 2: Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).
Subsection (1C) applies if:
an unlawful non-citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B or repealed section 198C for a temporary purpose; and
the non-citizen gives birth to a child while the non-citizen is in Australia; and
(c) the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).
An officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).
Removal of unlawful non-citizens in other circumstances
An officer must remove as soon as reasonably practicable an unlawful non-citizen:
who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
who has not subsequently been immigration cleared; and
who either:
has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
the non-citizen is covered by subparagraph 193(1)(a)(iv); and
(b) since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
in a case where the non-citizen has been invited, in accordance with the Minister about revocation of the original decision—either:section 501C or 501CA, to make representations to
the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
in a case where the non-citizen has been invited, in accordance with the Minister about revocation of the delegate’s decision—either:section 501CA, to make representations to
the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
is a detainee; and
neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen has made a valid application for a bridging visa.
Despite subsection (5), an officer must not remove an unlawful non-citizen if:
the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and
either:
the grant of the visa has not been refused; or
the application has not been finally determined.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
the non-citizen is a detainee; and
the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
one of the following applies:
the grant of the visa has been refused and the application has been finally determined;
the visa cannot be granted; and
the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
the non-citizen is a detainee; and
Subdivision AI of Division 3 of this Part applies to the non-citizen; and
either:
the non-citizen has not been immigration cleared; or
the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
either:
the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or
the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
the non-citizen is a detainee; and
Subdivision AJ of Division 3 of this Part applies to the non-citizen; and
either:
the Minister has not given a notice under subsection 91L(1) to the non-citizen; or
the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
No civil liability for removal
No civil liability is incurred by an officer or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer in good faith and in the exercise of the officer’s powers, or the performance of the officer’s functions or duties, under this section in relation to a person:
in relation to whom a decision has been made under section 501, 501A, 501B or 501BA; or
in relation to whom a decision has been made to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C); or
whose visa has ceased to be in effect under section 76AAA.
No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:
by the officer or officer of the Commonwealth in good faith and:
in the exercise of the officer’s or the officer of the Commonwealth’s powers; or
in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or
by a foreign country; or
by any person in a foreign country;
in relation to the acceptance or receipt by a foreign country, or ongoing presence in a foreign country, of a person removed from Australia under this section, including any act or thing done or omitted to be done:
under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or
in relation to the third country reception functions (within the meaning of that section) of the country.
The Minister or an officer of the Department may collect, use, or disclose to the government of a foreign country, for a purpose mentioned in subsection (2), information (including personal information) about:
a removal pathway non-citizen; or
a former removal pathway non-citizen who does not hold a substantive visa or criminal justice visa.
Note: To avoid doubt, personal information includes criminal history information.
The purposes are as follows:
determining whether there is a real prospect of the removal of the non-citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future;
facilitating the removal of the non-citizen from Australia under that section;
taking action or making payments in relation to:
a third country reception arrangement (within the meaning of section 198AHB); or
the third country reception functions (within the meaning of that section) of a foreign country;
doing a thing that is incidental or conducive to the taking of an action, or the making of a payment, mentioned in paragraph (c);
purposes directly or indirectly connected with, or incidental to, any of the above.
Circumstances in which information must not be disclosed
However, information about a non-citizen must not be disclosed to the government of a foreign country under subsection (1) if:
the non-citizen has made a valid application for a protection visa that has not been finally determined; or
in the case of an unlawful non-citizen—the non-citizen cannot be removed to that country because of subsection 197C(3); or
in the case of a lawful non-citizen—the non-citizen could not be removed to that country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen.
Certain existing prohibitions do not apply
(4) Despite Crimes Act 1914, any other law of the Commonwealth, or any law of a State or Territory, this section has effect in relation to information about any conviction of an individual that is spent (however described) under any of those laws.Division 3 of Part VIIC of the
No limitation on existing powers
This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.
Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to a person or body, criminal history information for the purpose of informing the performance of a function or the exercise of a power under this Act or the regulations (see section 501M).
Natural justice does not apply
The rules of natural justice do not apply to an exercise of power under this section.
Definitions
In this section:
government of a foreign country means:
the government of the foreign country or of part of the foreign country; or
an agency or authority of the government of the foreign country; or
an agency or authority of the government of part of the foreign country; or
a local government body or regional government body of the foreign country.
Subdivision B—Regional processing
This Subdivision is enacted because the Parliament considers that:
people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
(1) The Minister may, by legislative instrument, designate that a country is a regional processing country.
A legislative instrument under subsection (1):
may designate only one country; and
must not provide that the designation ceases to have effect.
(1B) Despite subsection 12(1) of the Legislation Act 2003, a legislative instrument under subsection (1) of this section commences at the earlier of the following times:
immediately after both Houses of the Parliament have passed a resolution approving the designation;
immediately after both of the following apply:
a copy of the designation has been laid before each House of the Parliament under section 198AC;
5 sitting days of each House have passed since the copy was laid before that House without it passing a resolution disapproving the designation.
The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country.
In considering the national interest for the purposes of subsection (2), the Minister:
must have regard to whether or not the country has given Australia any assurances to the effect that:
the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and
(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and
may have regard to any other matter which, in the opinion of the Minister, relates to the national interest.
The assurances referred to in paragraph (3)(a) need not be legally binding.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation.
The rules of natural justice do not apply to the exercise of the power under subsection (1) or (6).
(9) In this section, country includes:
a colony, overseas territory or protectorate of a foreign country; and
an overseas territory for the international relations of which a foreign country is responsible.
This section applies if the Minister designates a country to be a regional processing country under subsection 198AB(1).
The Minister must cause to be laid before each House of the Parliament:
a copy of the designation; and
a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by the country; and
a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and
a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and
a summary of any advice received from that Office in relation to the designation; and
a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.
The Minister must comply with subsection (2) within 2 sitting days of each House of the Parliament after the day on which the designation is made.
The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.
A failure to comply with this section does not affect the validity of the designation.
(6) In this section, agreement includes an agreement, arrangement or understanding:
whether or not it is legally binding; and
whether it is made before, on or after the commencement of this section.
Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.
Note: For when this section applies to a transitory person, see section 198AH.
An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
Note: For how this subsection operates if the Minister has been requested to exercise, or is considering exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival, see section 198AHC.
However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.
Powers of an officer
For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:
place the unauthorised maritime arrival on a vehicle or vessel;
restrain the unauthorised maritime arrival on a vehicle or vessel;
remove the unauthorised maritime arrival from:
the place at which the unauthorised maritime arrival is detained; or
a vehicle or vessel;
use such force as is necessary and reasonable.
If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:
subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and
section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.
Ministerial direction
If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.
If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.
The duty under subsection (5) may only be performed by the Minister personally.
The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.
The rules of natural justice do not apply to the performance of the duty under subsection (5).
A direction under subsection (5) is not a legislative instrument.
Not in immigration detention
(11) An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).
No civil liability for taking to regional processing country
No civil liability is incurred by an officer, the Minister or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer or the Minister in good faith and in the exercise of the officer’s or Minister’s powers, or the performance of the officer’s or Minister’s functions or duties, under this section.
No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:
by the officer or officer of the Commonwealth in good faith and:
in the exercise of the officer’s or the officer of the Commonwealth’s powers; or
in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or
(b) by a regional processing country or another foreign country; or
by any person in a regional processing country or another foreign country;
in relation to the acceptance or receipt by a regional processing country or another foreign country, or ongoing presence in a regional processing country or another foreign country, of an unauthorised maritime arrival taken to a regional processing country under this section (the applicable country), including any act or thing done or omitted to be done:
under or in relation to an arrangement (within the meaning of section 198AHA) mentioned in subsection 198AHA(1) that is in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or
in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or
under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or
in relation to the third country reception functions (within the meaning of section 198AHB) of the applicable country.
Meaning of officer
(12) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so.
The power under subsection (1) or (1A) may only be exercised by the Minister personally.
The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A).
If the Minister makes a determination under subsection (1) or varies or revokes a determination under subsection (1A), the Minister must cause to be laid before each House of the Parliament a statement that:
sets out the determination, the determination as varied or the instrument of revocation; and
sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
A statement under subsection (4) must not include:
the name of the unauthorised maritime arrival; or
any information that may identify the unauthorised maritime arrival; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
if the determination is made, varied or revoked between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the determination is made, varied or revoked between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (1A) in respect of any unauthorised maritime arrival, whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
An instrument under subsection (1) or (1A) is not a legislative instrument.
Section 198AD does not apply to an unauthorised maritime arrival if there is no regional processing country.
Section 198AD does not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).
A transitory person is covered by this subsection if:
the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and
the person is detained under section 189; and
the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).
Note: Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).
(1B) A transitory person (a transitory child) is covered by this subsection if:
a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and
the transitory child is detained under section 189; and
(c) the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1).
(2) Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.
The Commonwealth may do all or any of the following:
take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
do anything else that is incidental or conducive to the taking of such action or the making of such payments.
To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
Nothing in this section limits the executive power of the Commonwealth.
In this section:
action includes:
exercising restraint over the liberty of a person; and
action in a regional processing country or another country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
Entering into third country reception arrangements
The rules of natural justice do not apply to an exercise of the executive power of the Commonwealth to:
enter into a third country reception arrangement with a foreign country; or
do anything preparatory to entering into a third country reception arrangement with a foreign country.
Note: The following are examples of things that are preparatory to entering into a third country reception arrangement with a foreign country:
drafting the arrangement;
negotiating and settling the terms of the arrangement with the foreign country;
providing information to the foreign country about non-citizens who may be transferred to the foreign country under the arrangement (whether or not those non-citizens are of a kind mentioned in subsection 198AAA(1));
adopting the arrangement.
Things done in relation to third country reception arrangements
The rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including in relation to the third country reception functions of a foreign country.
Note: The following are examples of things done in relation to a third country reception arrangement with a foreign country or the third country reception functions of a foreign country:
the things mentioned in subsection 198AHB(2);
an officer of the Department applying for a non-citizen to be granted permission by a foreign country to enter and remain in that country for the purposes of section 76AAA.
For the purposes of subsection (2), it does not matter whether:
the Commonwealth does the thing by exercising its executive power; or
any of the following do the thing by exercising statutory power under a provision of this Act:
the Commonwealth;
the Minister, or a delegate of the Minister;
an officer of the Department.
In this section:
third country reception arrangement has the meaning given by section 198AHB.
third country reception functions has the meaning given by subsection 198AHB(5).
(1) This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.
Note: The rules of natural justice do not apply to entering into a third country reception arrangement with a foreign country, including anything done preparatory to entering into an arrangement: see subsection 198AHAA(1).
The Commonwealth may do all or any of the following:
take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;
make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;
do anything else that is incidental or conducive to the taking of such action or the making of such payments.
Note: The rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including anything done in relation to the third country reception functions of a foreign country: see subsection 198AHAA(2).
To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
Nothing in this section limits:
any other power or duty under this Act; or
the executive power of the Commonwealth.
In this section:
action includes action in a foreign country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.
For the purposes of subsection 198AD(2), it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival.
To avoid doubt:
an officer’s duty to take, as soon as reasonably practicable, an unauthorised maritime arrival from Australia to a regional processing country under subsection 198AD(2) arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unauthorised maritime arrival; and
the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival is irrelevant to whether or not the taking of the unauthorised maritime arrival from Australia to a regional processing country is reasonably practicable for the purposes of subsection 198AD(2).
Subsection (1) applies whether a request is made by:
the unauthorised maritime arrival; or
an officer of the Department; or
any other person.
Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of duty to transfer unauthorised maritime arrivals
Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unauthorised maritime arrival, subsection 198AD(2) does not require or authorise an officer to take the unauthorised maritime arrival from Australia to a regional processing country during the period covered by subsection (6).
Note: Despite this subsection, an unauthorised maritime arrival who asks the Minister, in writing, to be taken from Australia to a regional processing country must be taken to that country (see subsection (10)).
Period during which duty to transfer is suspended
(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unauthorised maritime arrival, unless:
before the end of that 6 month period, the unauthorised maritime arrival has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or
the period ends earlier under subsection (7).
For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:
the end of the day the Minister decides not to exercise the power in relation to the unauthorised maritime arrival;
the end of the day the Minister decides to stop considering whether to exercise the power in relation to the unauthorised maritime arrival;
if the Minister exercises the power in relation to the unauthorised maritime arrival, and subsection (8) specifies a day—the end of that day;
if the Minister exercises the power in relation to the unauthorised maritime arrival but the exercise does not result in the unauthorised maritime arrival being able to make a visa application—the end of the day that the Minister exercises the power.
For the purposes of paragraph (7)(c), this subsection specifies the following days:
in a case where, as a consequence of the exercise of the Ministerial intervention power, the unauthorised maritime arrival may make a visa application within a specified period—the last day of the period in which the unauthorised maritime arrival could make the visa application;
in any other case where, as a consequence of the exercise of the power, the unauthorised maritime arrival may make a visa application—whichever of the following days occurs first:
the last day of the period determined by the Minister in which the unauthorised maritime arrival could make the visa application;
the day that is 3 months after the Minister exercises the power.
Scope of suspension of duty to transfer unauthorised maritime arrival
To avoid doubt, subsection (5) of this section:
prevents an unauthorised maritime arrival being taken from Australia to a regional processing country during the period covered by subsection (6); but
does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the unauthorised maritime arrival being taken from Australia to a regional processing country after the period ends.
Unauthorised maritime arrival may request transfer to regional processing country
Despite subsection (5), if an unauthorised maritime arrival to whom the Minister, in writing, to be taken from Australia to a regional processing country under section 198AD, the unauthorised maritime arrival must be taken, under that section, to that country.section 198AD applies asks
The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of Parliament a report setting out:
the activities conducted under the Bali Process during the year ending on 30 June; and
the steps taken in relation to people smuggling, trafficking in persons and related transnational crime to support the Regional Cooperation Framework during the year ending on 30 June; and
the progress made in relation to people smuggling, trafficking in persons and related transnational crime under the Regional Cooperation Framework during the year ending on 30 June.
The Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following:
arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for:
assessing those claims in those countries; and
the accommodation, health care and education of those unauthorised maritime arrivals in those countries;
the number of those claims assessed in those countries in the financial year;
(c) the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
However, a report under this section need deal with a particular regional processing country in accordance with subsection (1) only so far as information provided by the country makes it reasonably practicable for the report to do so.
A report under this section must not include:
the name of a person who is or was an unauthorised maritime arrival; or
any information that may identify such a person; or
the name of any other person connected in any way with any person covered by paragraph (a); or
any information that may identify that other person.
Subdivision C—Transitory persons etc.
An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
The power under subsection (1) includes the power to do any of the following things within or outside Australia:
place the person on a vehicle or vessel;
restrain the person on a vehicle or vessel;
remove the person from a vehicle or vessel;
use such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
If:
an officer removes, or is about to remove, an unlawful non-citizen; and
the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia;
an officer may remove the spouse or de facto partner as soon as reasonably practicable.
If:
an officer removes, or is about to remove an unlawful non-citizen; and
the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia with a dependent child or children of that non-citizen;
an officer may remove the spouse or de facto partner and dependent child or children as soon as reasonably practicable.
If:
an officer removes, or is about to remove, an unlawful non-citizen; and
that non-citizen requests an officer to remove a dependent child or children of the non-citizen from Australia;
an officer may remove the dependent child or children as soon as reasonably practicable.
In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove includes a reference to take to a regional processing country.
Subdivision D—Duty to cooperate in relation to removal and removal concern countries
This Subdivision is enacted because the Parliament expects that a removal pathway non-citizen:
will voluntarily leave Australia; and
if the non-citizen does not voluntarily leave Australia, will cooperate with steps taken under this Act for the purposes of arranging the non-citizen’s lawful removal from Australia; and
will not attempt to obstruct or frustrate the non-citizen’s lawful removal from Australia.
This Subdivision is also enacted because the Parliament expects that a foreign country will cooperate with Australia to facilitate the lawful removal from Australia of a non-citizen who is a national of that country.
To avoid doubt, a removal pathway non-citizen for whom a protection finding has been made within the meaning of subsection 197C(4), (5), (6) or (7):
may be given a removal pathway direction by the Minister; and
may commit the offence of refusing or failing to comply with the direction under section 199E.
Note: For the circumstances in which the Minister must not give a removal pathway direction, see section 199D.
To avoid doubt, nothing in section 199C or 199D authorises or requires the removal of an unlawful non-citizen under section 198 to a country to which the non-citizen could not be removed because of subsection 197C(3).
Direction powers
The Minister may, by written notice given to a removal pathway non-citizen, direct the non-citizen to do one or more of the following things:
complete, sign and submit an application for one or more of the following documents (including doing and providing all things required for the application process by the person or authority to which it is to be submitted):
a passport;
(ii) a travel-related document within the meaning of the Australian Passports Act 2005;
(iii) a foreign travel document within the meaning of the Foreign Passports (Law Enforcement and Security) Act 2005;
complete, sign and submit any other document or form required for, or to facilitate, travel (including doing and providing all things required for submission by the person or authority to which it is to be submitted);
provide documents or information to an officer or another person specified in the direction;
attend an interview or appointment with an officer or another person specified in the direction;
report in person to an officer or another person in accordance with instructions specified in the direction.
Without limiting subsection (1), the Minister may, by written notice given to a removal pathway non-citizen, direct the non-citizen to do a thing, or not do a thing, if the Minister is satisfied that the non-citizen doing, or not doing, the thing is reasonably necessary to:
determine whether there is a real prospect of the removal of the non-citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future; or
facilitate the removal of the non-citizen from Australia under that section.
Note 1: For the circumstances in which the Minister must not give a direction under subsection (1) or (2), see section 199D.
Note 2: The Minister may give a direction under subsection (1) or (2) to a removal pathway non-citizen during the period that the non-citizen’s removal is not required or authorised under section 198 as a result of the Minister considering whether to exercise a Ministerial intervention power in relation to the non-citizen (see section 197E).
The Minister may, by written notice given to a removal pathway non-citizen, revoke a removal pathway direction given to the non-citizen.
Period for compliance
A removal pathway direction must specify:
the period within which the non-citizen must do a specified thing; or
for a direction not to do a specified thing—the period during which the non-citizen must not do the thing.
Consequences of non-compliance
A removal pathway direction must state that a non-citizen who refuses or fails to comply with the direction may commit an offence under section 199E.
Interaction with monitoring conditions on certain bridging visas
To avoid doubt, if a removal pathway non-citizen covered by paragraph (b) of the definition of that expression in subsection 5(1) refuses or fails to comply with a removal pathway direction, the refusal or failure does not constitute a failure to comply with a requirement of a monitoring condition (within the meaning of subsection 76B(4)) for the purposes of paragraph 76B(1)(d).
Multiple and concurrent directions
A non-citizen may be given more than one removal pathway direction.
However, the Minister must not give a removal pathway direction to a non-citizen to do a thing, or not do a thing:
that is the subject of a direction previously given by the Minister to the non-citizen; and
for which the period specified in the previous direction for the thing has not ended.
Natural justice does not apply
The rules of natural justice do not apply to an exercise of power under this section.
Non-citizens subject to a protection finding
The Minister must not give a removal pathway direction to a removal pathway non-citizen to do, or not do, a thing in relation to a particular country if:
in the case of an unlawful non-citizen—the non-citizen cannot be removed to that country because of subsection 197C(3); or
in the case of a lawful non-citizen—the non-citizen could not be removed to that country because of that subsection if the non-citizen were an unlawful non-citizen.
Non-citizens who have applied for protection visas
The Minister must not give a removal pathway direction to a removal pathway non-citizen if:
the non-citizen has made a valid application for a protection visa; and
the application is not yet finally determined.
Interaction with monitoring conditions on certain bridging visas
The Minister must not give a removal pathway direction to a removal pathway non-citizen if all of the following apply:
the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa;
the visa is subject to a monitoring condition (within the meaning of subsection 76B(4));
an instruction or specification under the monitoring condition has been given to the non-citizen;
the direction would require the non-citizen to do, or not do, a thing that is substantially the same as the instruction or specification;
the Minister has not, in writing:
withdrawn the instruction or specification; or
confirmed that the instruction or specification has been complied with.
Children
The Minister must not give a removal pathway direction to a removal pathway non-citizen if the non-citizen is a child under 18.
However, if the parent or guardian of the child is a removal pathway non-citizen, the Minister may give a removal pathway direction in relation to the child to the parent or guardian.
Court or tribunal proceedings etc.
The Minister must not give a removal pathway direction to a removal pathway non-citizen directing the non-citizen:
not to commence, or to discontinue, court or tribunal proceedings; or
to take or not take particular steps in the conduct of such proceedings; or
not to make a visa application under this Act; or
to withdraw a visa application made under this Act.
A person commits an offence if:
the person is a removal pathway non-citizen; and
the person is given a removal pathway direction; and
the direction has not been revoked; and
the person refuses or fails to comply with the direction.
Penalty: 5 years imprisonment or 300 penalty units, or both.
If a person is convicted of an offence under subsection (1), the court must impose a sentence of imprisonment of at least 12 months.
Exception
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
For the purposes of subsection (3), it is not a reasonable excuse that the person:
has a genuine fear of suffering persecution or significant harm if the person were removed to a particular country; or
is, or claims to be, a person in respect of whom Australia has non-refoulement obligations; or
believes that, if the person were to comply with the removal pathway direction, the person would suffer other adverse consequences.
Note: See subsections 199D(1) and (2) for restrictions on giving removal pathway directions to non-citizens who are subject to a protection finding or who have applied for a protection visa.
No continuing offence
(5) Section 4K (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence under subsection (1) of this section.
(1) The Minister may, by legislative instrument, designate a country as a removal concern country if the Minister thinks it is in the national interest to designate the country to be a removal concern country.
Before the Minister designates a country under subsection (1), the Minister must consult with:
the Prime Minister; and
(b) the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Before the Minister designates a country under subsection (1), the Minister must have regard to the matters (if any) prescribed by the regulations for the purposes of this subsection.
Neither of the following limits, or otherwise affects, the matters the Minister may consider for the purposes of deciding under subsection (1) whether it is in the national interest to designate a country to be a removal concern country:
the requirement under subsection (2A) that the Minister must have regard to matters (if any) that are prescribed by the regulations for the purposes of that subsection;
the prescription of particular matters by the regulations for the purposes of subsection (2A).
If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation.
Personal power etc.
The powers under subsections (1) and (3) may only be exercised by the Minister personally.
The rules of natural justice do not apply to the exercise of the power under subsection (1) or (3).
Copy of designation etc. to be laid before Parliament
If the Minister designates a country under subsection (1), the Minister must cause to be laid before each House of the Parliament:
a copy of the designation; and
a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a removal concern country.
The Minister must comply with subsection (6) within 2 sitting days of each House of the Parliament after the day on which the designation is made.
A failure to comply with subsection (6) or (7) does not affect the validity of the designation.
Automatic repeal
Unless revoked earlier, the designation is repealed at the end of 3 years after the day on which the designation commences.
Definition
(9) In this section, country includes:
a colony, overseas territory or protectorate of a foreign country; and
an overseas territory for the international relations of which a foreign country is responsible.
An application for a visa by a non-citizen is not a valid application if, at the time the application is made:
the non-citizen is a national of one or more removal concern countries; and
the non-citizen is outside Australia.
Exceptions to bar on visa application
Subsection (1) does not apply in relation to an application for a visa by a non-citizen if:
both of the following apply:
the non-citizen is a national of a country (within the meaning of subsection 199F(9)) that is not a removal concern country;
the non-citizen holds a passport issued by that country that is in force; or
the non-citizen is the spouse, de facto partner or dependent child (within the meaning of the regulations) of:
an Australian citizen; or
the holder of a permanent visa that is in effect; or
a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or
the non-citizen is the parent of a child who is under 18 and in Australia; or
the application is for the grant of a Refugee and Humanitarian (Class XB) visa (within the meaning of section 39A); or
the non-citizen is included in a class of persons determined in an instrument made under subsection (3) of this section; or
the application is for the grant of a visa of a class determined in an instrument made under subsection (3) of this section.
The Minister may, by legislative instrument, determine the following:
a class of persons for the purposes of paragraph (2)(e);
a class of visa for the purposes of paragraph (2)(f).
Minister may determine bar on visa application does not apply
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a non-citizen, determine that subsection (1) does not apply to an application by the non-citizen for a visa of a class specified in the determination.
A determination under subsection (4) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
The Minister may, by written notice given to a non-citizen, vary or revoke a determination made under subsection (4) in relation to the non-citizen if the Minister thinks that it is in the public interest to do so.
The power under subsection (4) or (6) may only be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise the power under subsection (4) or (6) in respect of any non-citizen, whether the Minister is requested to do so by the non-citizen or by any other person, or in any other circumstances.
The Minister may order the deportation of a non-citizen to whom this Division applies.
Where:
a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
when the offence was committed the person was a non-citizen who:
had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.
Where:
it appears to the Minister that the conduct (whether in Australia or elsewhere and either before or after the commencement of this subsection) of a non-citizen referred to in paragraph 201(b) constitutes, or has constituted, a threat to security; and
the Minister has been furnished with an adverse security assessment in respect of the non-citizen by the Organisation, being an assessment made for the purposes of this subsection;
then, subject to this section, section 200 applies to the non-citizen.
Where:
subsection (1) applies in relation to a non-citizen;
(b) the adverse security assessment made in respect of the non-citizen is not an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
the non-citizen applies to the ART for a review of the security assessment and the ART, after reviewing the assessment, finds that the security assessment should not have been an adverse security assessment;
section 200 does not apply to the non-citizen.
Where:
subsection (1) applies in relation to a non-citizen;
(b) the adverse security assessment made in respect of the non-citizen is an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
the Attorney-General has, in accordance with section 65 of that Act, required the ART to review the assessment;
section 200 does not apply to the non-citizen unless the ART confirms the assessment.
(4) A notice given by the Minister pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act 1979 informing a person of the making of an adverse security assessment, being an assessment made for the purposes of subsection (1) of this section, shall contain a statement to the effect that the assessment was made for the purposes of subsection (1) of this section and that the person may be deported under section 200 because of section 202.
Section 19 (ART may extend period) of the ART Act does not apply in relation to an application to the ART for a review of an adverse security assessment made for the purposes of subsection (1) of this section.
In this section:
adverse security assessment, security assessment and Tribunal have the same meanings as they have in Part IV of the Australian Security Intelligence Organisation Act 1979.
Organisation means the Australian Security Intelligence Organisation.
security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.
Where:
a person who is a non-citizen has, either before or after the commencement of this subsection, been convicted in Australia of an offence;
at the time of the commission of the offence the person was not an Australian citizen; and
the offence is:
(ia) an offence against Criminal Code; orDivision 80 or 82 of the
(ib) an offence against Criminal Code; orsection 83.1 (advocating mutiny) or 83.2 (assisting prisoners of war to escape) of the
(ii) an offence against Crimes Act 1914 that relates to an offence mentioned in subparagraph (ia) or (ib) of this paragraph; orsection 6 of the
(iia) an offence against Criminal Code that relates to an offence mentioned in subparagraph (ia) or (ib) of this paragraph; orsection 11.1 or 11.5 of the
an offence against a law of a State or of any internal or external Territory that is a prescribed offence for the purposes of this subparagraph;
then, subject to this section, section 200 applies to the non-citizen.
Section 200 does not apply to a non-citizen because of this section unless the Minister has first served on the non-citizen a notice informing the non-citizen that he or she proposes to order the deportation of the non-citizen, on the ground specified in the notice, unless the non-citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister’s notice, that his or her case be considered by a Commissioner appointed for the purposes of this section.
If a non-citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non-citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice.
A Commissioner for the purposes of this section shall be appointed by the Governor-General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years’ standing.
The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established.
The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
Where a notice has been served on a non-citizen under subsection (2), section 200 does not apply to the non-citizen because of this section unless:
the non-citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner;
the non-citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or
a Commissioner reports under this section in relation to the non-citizen that he or she considers that the ground specified in the notice has been established.
Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder.
In section 201 and subsection 202(1):
permanent resident means a person (including an Australian citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law, but does not include:
in relation to any period before 2 April 1984—a person who was, during that period, a prohibited immigrant within the meaning of this Act as in force at that time; or
in relation to any period starting on or after 2 April 1984 and ending on or before 19 December 1989—the person who was, during that period, a prohibited non-citizen within the meaning of this Act as in force in that period; or
(c) in relation to any period starting on or after 20 December 1989 and ending before the commencement of Migration Reform Act 1992—the person who was, during that period, an illegal entrant within the meaning of this Act as in force in that period; orsection 7 of the
in relation to any later period—the person who is, during that later period, an unlawful non-citizen.
For the purposes of this section:
a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and
a reference to a period during which a person was confined in a prison includes a reference to a period:
during which the person was an escapee from a prison; or
during which the person was undergoing a sentence of periodic detention in a prison.
Where the Minister makes or has made an order for the deportation of a person who has a spouse or de facto partner, the Minister may, at the request of the spouse or de facto partner of that person, remove:
the spouse or de facto partner; or
the spouse or de facto partner and a dependent child or children;
of that person.
Where the Minister makes or has made an order for the deportation of a person who does not have a spouse or de facto partner but who does have a dependent child or children, the Minister may, at the person’s request, remove a dependent child or children of the person.
Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.
For the purposes of:
determining whether section 200 applies to a non-citizen; or
executing a deportation order in relation to a non-citizen under subsection 206(1);
it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the non-citizen.
Subsection (1) applies whether a request is made by:
the non-citizen; or
an officer of the Department; or
any other person.
Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of deportation
Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to a non-citizen, the Minister must not order the deportation of the non-citizen, and the non-citizen must not be deported, during the period covered by subsection (5).
Period during which deportation is suspended
(5) For the purposes of subsection (4), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the non-citizen, unless:
before the end of that 6 month period, the non-citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or
the period ends earlier under subsection (6).
For the purposes of paragraph (5)(b), the period ends at the earlier of the following times:
the end of the day the Minister decides not to exercise the power in relation to the non-citizen;
the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non-citizen;
if the Minister exercises the power in relation to the non-citizen, and subsection (7) specifies a day—the end of that day;
if the Minister exercises the power in relation to the non-citizen but the exercise does not result in the non-citizen being able to make a visa application—the end of the day that the Minister exercises the power.
For the purposes of paragraph (6)(c), this subsection specifies the following days:
in a case where, as a consequence of the exercise of the Ministerial intervention power, the non-citizen may make a visa application within a specified period—the last day of the period in which the non-citizen could make the visa application;
in any other case where, as a consequence of the exercise of the power, the non-citizen may make a visa application—whichever of the following days occurs first:
the last day of the period determined by the Minister in which the non-citizen could make the visa application;
the day that is 3 months after the Minister exercises the power.
In this Division:
carrier means a controller of the vessel on which the non-citizen was last brought to Australia.
controller means the master, owner, agent or charterer of the vessel.
costs means the fares and other costs to the Commonwealth of transporting: a non-citizen; and a custodian of the non-citizen; from Australia to the place outside Australia to which the non-citizen is removed or deported.
a non-citizen; and
a custodian of the non-citizen;
from Australia to the place outside Australia to which the non-citizen is removed or deported.
Subject to section 212, a non-citizen who is removed or deported, other than an unlawful non-citizen who came to Australia on a criminal justice visa, is liable to pay the Commonwealth the costs of his or her removal or deportation.
If:
2 persons are spouses or de facto partners of each other; and
either:
they are both removed or deported; or
one of them is deported and the other is removed;
each of them is liable to pay the Commonwealth the costs of their removals, their deportations, or the deportation and removal.
If:
2 persons are spouses or de facto partners of each other; and
either:
they are both removed or deported; or
one is deported and the other is removed; and
their dependent child, or dependent children, within the meaning of the regulations are also removed;
then:
the child or children are not liable to pay the Commonwealth the costs of the child’s or children’s removal; and
the persons are liable to pay the Commonwealth those costs.
If:
a non-citizen is removed or deported; and
the non-citizen either:
does not have a spouse or de facto partner; or
does not have a spouse, or a de facto partner, who is deported or removed; and
the non-citizen has a dependent child, or dependent children, within the meaning of the regulations who are removed;
then:
the child or children are not liable to pay the Commonwealth the costs of their removal; and
the non-citizen is liable to pay the Commonwealth those costs.
If a non-citizen who enters Australia:
is required to comply with section 166 (immigration clearance); and
either:
does not comply; or
on complying, is detained under section 189 as an unlawful non-citizen;
then, as soon as practicable after the Secretary or Australian Border Force Commissioner becomes aware that paragraphs (a) and (b) apply to the non-citizen, the Secretary or Australian Border Force Commissioner may give a carrier of the non-citizen a written notice requiring the carriers of the non-citizen to pay the costs of the non-citizen’s removal, or deportation, from Australia should that happen.
The notice is to:
give particulars of the calculation of the costs; and
state that an account for the costs will be given to at least one of the carriers of the non-citizen when they have been incurred.
If a notice is given, each carrier of the non-citizen is liable to pay the Commonwealth the costs described in the notice and for which an account is given.
If, under this Division, 2 or more persons are liable to pay the Commonwealth the costs of a non-citizen’s removal or deportation they are jointly and severally liable to pay those costs.
Without limiting any other provision of this Act, costs payable by a person to the Commonwealth under this Division may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction.
If:
a non-citizen is to be removed or deported; and
the non-citizen or another person holds a ticket for the conveyance of the non-citizen from a place within Australia to a place outside Australia;
the Secretary or Australian Border Force Commissioner may, on behalf of the ticket holder arrange (with or without the ticket holder’s consent) for the ticket to be applied for or towards the conveyance of the non-citizen.
If a person covered by subsection 193(1) is to be removed, the Secretary or Australian Border Force Commissioner may give the controller of the vessel on which the person travelled to and entered Australia written notice requiring the controller to transport the person from Australia.
Subject to the Secretary or Australian Border Force Commissioner allows.section 219, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as
Penalty: 100 penalty units.
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subject to the Secretary or Australian Border Force Commissioner may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice.section 217, if a person is to be removed or deported,
Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows.
Penalty: 100 penalty units.
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
It is a defence to a prosecution for an offence against section 217 or 218 of failing to comply with a notice to transport a non-citizen if the defendant proves:
that the defendant was prevented from complying with the notice because of stress of weather or other reasonable cause; or
the defendant gave reasonable notice to the Secretary or Australian Border Force Commissioner of the person’s willingness to receive the non-citizen on board a specified vessel at a specified port on a specified day within 72 hours of the giving of the notice for removal or deportation, but the non-citizen was not made available at that port on that date for boarding the vessel.
Note: A defendant bears a legal burden in relation to the matters in this section (see Criminal Code).section 13.4 of the
If:
a notice has been given under section 218 requiring the transport of an unlawful non-citizen to a country; and
the government of that country notifies the Minister that the non-citizen would not be permitted to enter that country;
the Minister is to give the controller written notice revoking the notice under that section.
The revocation of a notice does not prevent another notice under section 218 or affect any liability for costs.
If:
the controller of a vessel is given a notice under section 218 to transport a non-citizen; and
the controller was a carrier of the non-citizen; and
paragraphs 213(1)(a) and (b) apply to the non-citizen;
then the Commonwealth is not liable for the costs of transporting the non-citizen.
If:
the controller of a vessel is given a notice under section 218 to transport a non-citizen; and
subsection (1) does not apply;
then:
the Commonwealth is liable to pay the controller’s costs of the transport; and
sections 210 to 216 apply to the transport and those costs.
Where, on an application by the Secretary or Australian Border Force Commissioner relating to property of a non-citizen, a court is satisfied that:
the non-citizen is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and
if the court does not make an order under this subsection there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the non-citizen is, or becomes, liable to pay to the Commonwealth under section 210 or 212;
the court may make an order restraining any dealing with the property, or such part of the property as is specified in the order.
The Secretary or Australian Border Force Commissioner may apply to a court for an order under subsection (1) in respect of:
any of a non-citizen’s property that is in Australia; or
specified property of a non-citizen that is in Australia.
Where an application is made for an order under subsection (1), the court may, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
An order under subsection (1) has effect for the period specified in the order.
A court may rescind, vary or discharge an order made by it under this section.
A court may suspend the operation of an order made by it under this section.
An order under subsection (1) may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property to which the order relates, either or both of the following:
the non-citizen’s reasonable living expenses (including the reasonable living expenses of the non-citizen’s dependants (if any));
reasonable legal expenses incurred by the non-citizen in relation to a matter arising under this Act.
A person shall not contravene an order under this section.
Penalty: Imprisonment for 2 years.
Subsection (8) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).
In this section:
court means a court of competent jurisdiction.
property means real or personal property of every description, whether tangible or intangible, that is situated in Australia, and includes an interest in any such real or personal property.
This section applies in relation to a person who has been detained.
Where the Secretary or Australian Border Force Commissioner is satisfied that:
the detainee is an unlawful non-citizen or a deportee;
the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and
if the Secretary or Australian Border Force Commissioner does not give a notice under this section there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section 210 or 212;
the Secretary or Australian Border Force Commissioner may, in writing, notify the detainee that his or her valuables are liable to be taken under this section.
Where the Secretary or Australian Border Force Commissioner gives a notice under subsection (2), subsections (4) to (13) apply.
The Secretary or Australian Border Force Commissioner shall cause a copy of the notice to be served on the detainee as prescribed.
At any time after a copy of the notice has been served on the detainee and while the notice remains in force, the Secretary or Australian Border Force Commissioner may take possession of any valuables that the Secretary or Australian Border Force Commissioner believes, on reasonable grounds, to belong to the detainee.
A copy of the notice may be served on:
any bank;
any other financial institution; or
any other person.
A bank or other financial institution served with a copy of the notice shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, process any transaction attempted in relation to any account held by the detainee, whether alone or jointly with another person or other persons, and whether for his or her own benefit or as a trustee.
Penalty: 300 penalty units.
An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Where a copy of the notice is served on a person, not being a bank or other financial institution, who owes a debt to the detainee, that first-mentioned person shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, make any payment to the detainee in respect of that debt.
Penalty: Imprisonment for 2 years.
The notice stops being in force at the end of the third working day after it is given unless, before the end of that day, the Secretary or Australian Border Force Commissioner has applied to a court for an order confirming the notice.
A court shall, on application by the Secretary or Australian Border Force Commissioner, confirm the notice if and only if it is satisfied:
that the detainee is an unlawful non-citizen or a deportee;
that the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and
that, if the court does not confirm the notice, there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section 210 or 212.
If the court confirms the notice, the court may make an order directing the Secretary or Australian Border Force Commissioner to make provision, whether by returning valuables to which the notice relates or otherwise, for the meeting of either or both of the following:
the detainee’s reasonable living expenses (including the reasonable living expenses of the detainee’s dependants (if any));
reasonable legal expenses incurred by the detainee in relation to a matter arising under this Act.
If the notice is confirmed by the court, it remains in force for such period, not exceeding 12 months, as is specified by the court.
If the court refuses to confirm the notice, it thereupon stops being in force.
The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form.
A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and stops being in force at the end of that period.
An officer having with him or her a search warrant that was issued to him or her under subsection (14) and that is in force may, at any time in the day or night, and with such assistance, and using such reasonable force, as the officer thinks necessary:
enter and search any building, premises, vehicle, vessel or place in which the officer has reasonable cause to believe there may be found any valuables to which a notice in force under this section relates; and
may seize any such valuables found in the course of such a search.
An officer who has seized valuables under subsection (16) shall deal with those valuables in accordance with the directions of the Secretary or Australian Border Force Commissioner.
For the purposes of the exercise of his or her powers under subsection (16) an officer may stop any vehicle or vessel.
An officer who, in good faith, on behalf of the Secretary or Australian Border Force Commissioner or as a delegate of the Secretary or Australian Border Force Commissioner, does any act or thing for the purpose of the exercise of the power under subsection (5) to take possession of valuables is not liable to any civil or criminal action in respect of the doing of that act or thing.
In this section:
court means a court of competent jurisdiction.
valuables includes:
gold, jewellery, negotiable instruments, travellers cheques and cash; and
bank books and other documentary evidence of debts owed to the detainee.
Where the Secretary or Australian Border Force Commissioner takes possession of valuables pursuant to subsection 223(5), the provisions of this section have effect.
The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be kept until they are dealt with in accordance with a provision of this section, and shall ensure that all reasonable steps are taken to preserve the valuables while they are so kept.
The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be returned to the person from whom they were taken if:
the authorising notice stops being in force;
the notified detainee:
is granted a visa; or
stops being a deportee;
the notified detainee is not, when the authorising notice is given, liable to pay an amount to the Commonwealth under within 6 months after the giving of that notice, becomes so liable; orsection 210 or 212, and does not,
all amounts that the notified detainee is or becomes liable to pay to the Commonwealth under section 210 or 212 are paid to the Commonwealth.
If, when the Secretary or Australian Border Force Commissioner takes possession of valuables, the notified detainee is liable under section 210 or 212 to pay an amount to the Commonwealth, the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):
apply the valuables towards the payment of the amount owed to the Commonwealth; and
return any surplus to the person from whom the valuables were taken.
If, while valuables are being kept pursuant to subsection (2), the notified detainee becomes liable under the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):section 210 or 212 to pay an amount to the Commonwealth,
apply the valuables towards the payment of the amount owed to the Commonwealth; and
return any surplus to the person from whom the valuables were taken.
In this section:
authorising notice means the notice pursuant to which the Secretary or Australian Border Force Commissioner took possession of the valuables.
notified detainee means the person served with the notice under section 223.
This section applies to a vessel, other than a vessel of the regular armed forces of a government recognised by the Commonwealth, which has entered Australia from overseas.
On the arrival of a vessel at a port, an officer may require the master of the vessel to muster the vessel’s crew in the presence of the officer.
An officer may require the master of a vessel to muster the vessel’s crew in the presence of the officer before the vessel departs from a port.
An officer may require a member of the crew of a vessel to produce his or her identity documents to the officer for inspection.
A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
This section applies to a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being attached to the Australian seabed.
On the arrival of a resources installation at the place where it is to be attached to the Australian seabed, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.
An officer may require the person in charge of a resources installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from the Australian seabed for the purpose of being taken to a place outside the outer limits of Australian waters.
An officer may require a person on board a resources installation that is attached to the Australian seabed or to another resources installation that is so attached to produce to the officer for inspection the person’s identity documents.
A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
This section applies to a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being installed in an adjacent area or in a coastal area.
On the arrival of a sea installation at its proposed location, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.
An officer may require the person in charge of a sea installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters.
An officer may require a person on board a sea installation that is installed in an adjacent area or in a coastal area to produce to the officer for inspection the person’s identity documents.
A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Where a member of the crew of a vessel, other than a vessel of the regular armed forces of a government recognized by the Commonwealth, that has entered Australia from overseas was on board the vessel at the time of its arrival at a port and is absent from the vessel at the time of its departure from the port, the master of the vessel shall, at that departure, deliver to an officer a written report:
specifying the name of the member; and
stating:
that the member was a member of the crew of the vessel on board the vessel at the time of its arrival at that port; and
that the member is absent from the vessel at the time of its departure from that port; and
stating whether the member left the vessel at that port with leave or without leave.
Penalty: 40 penalty units.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision A—People smuggling and related offences
This Subdivision applies in and outside Australia.
For the purposes of this Subdivision, a non-citizen has, at a particular time, no lawful right to come to Australia if, at that time:
the non-citizen does not hold a visa that is in effect; and
the non-citizen is not covered by an exception referred to in subsection 42(2) or (2A); and
the non-citizen is not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect.
To avoid doubt, a reference in subsection (1) to a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.
The master, owner, agent, charterer and operator of a vessel on which a non-citizen is brought into Australia on or after 1 November 1979 each commit an offence against this section if the non-citizen, when entering Australia:
is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and
does not hold a special purpose visa; and
is not eligible for a special category visa; and
does not hold an enforcement visa; and
is a person to whom subsection 42(1) applies.
A person commits an offence if:
the person is a master, owner, agent, charterer or operator of an aircraft; and
the person brings a non-citizen into Australia by air on the aircraft; and
the non-citizen is the holder of a maritime crew visa that is in effect.
A person who commits an offence against this section is liable, upon conviction, to a fine not exceeding 100 penalty units.
An offence against subsection (1) or (1A) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.
For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
Note: For evidential burden, see section 13.3 of the Criminal Code.
It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non-citizen into Australia on a vessel if it is established:
that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
did not appear to have been cancelled; and
was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia;
that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:
was eligible for a special category visa; or
was the holder of a special purpose visa; or
would, when entering Australia, be the holder of a special purpose visa; or
was the holder of an enforcement visa; or
would, when entering Australia, be the holder of an enforcement visa; or
that the vessel entered Australia from overseas only because of:
the illness of a person on board the vessel;
stress of weather; or
other circumstances beyond the control of the master.
It is a defence to a prosecution for an offence against subsection (1A) in relation to the bringing of a non-citizen into Australia on an aircraft if it is established that:
the non-citizen was, when he or she boarded or last boarded the aircraft for travel to Australia, in possession of evidence of another class of visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
did not appear to have been cancelled; and
was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; or
the aircraft entered Australia from overseas only because of:
the illness of a person on board the aircraft; or
stress of weather; or
other circumstances beyond the control of the master.
A defendant bears a legal burden in relation to the matters in subsection (5) or (5A).
The master, owner, agent and charterer of a vessel each commit an offence against this section if an unlawful non-citizen is concealed on the vessel when it arrives in the migration zone.
Penalty: 100 penalty units.
The master, owner, agent and charterer of a vessel each commit an offence against this section if:
a person is concealed on the vessel when it arrives in Australia; and
the person would, if in the migration zone, be an unlawful non-citizen.
Penalty: 100 penalty units.
An offence against subsection (1) or (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subsection (1) does not apply if the master of the vessel:
as soon as it arrives in the migration zone, gives notice to an officer that the non-citizen is on board; and
prevents the non-citizen from landing without an officer having had an opportunity to question the non-citizen.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Subsection (1A) does not apply if the master of the vessel:
as soon as it arrives in Australia, gives notice to an officer that the person is on board; and
prevents the person from leaving the vessel without an officer having had an opportunity to question the person.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
The master of a vessel arriving in Australia must comply with any request by an authorised officer to:
give the authorised officer a list of all persons on the vessel and prescribed particulars of each of them; or
gather together those persons or such of them as are specified by the officer; or
make sure of the disembarkation from the vessel of those persons or such of them as are specified by the officer.
If:
a person is on a vessel that has arrived in Australia; and
that person’s name is not on a list of persons on the vessel given under subsection (1);
the person is taken, for the purposes of section 230, to have been concealed on the vessel when it arrived.
Where:
a non-citizen:
enters Australia on a vessel; and
because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non-citizen; and
is a person to whom subsection 42(1) applies; or
a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;
the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units.
An offence against subsection (1) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.
For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
Note: For evidential burden, see section 13.3 of the Criminal Code.
It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non-citizen to Australia on a vessel if it is established:
that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
did not appear to have been cancelled; and
was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; or
that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:
was eligible for a special category visa; or
was the holder of a special purpose visa; or
would, when entering Australia, be the holder of a special purpose visa; or
was the holder of an enforcement visa; or
would, when entering Australia, be the holder of an enforcement visa; or
that the vessel entered Australia from overseas only because of:
the illness of a person on board the vessel; or
stress of weather; or
other circumstances beyond the control of the master.
A defendant bears a legal burden in relation to the matters in subsection (2).
(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
the second person is a non-citizen; and
the second person had, or has, no lawful right to come to Australia.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see Criminal Code.section 6.2 of the
For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.
(1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply:
in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression);
in committing the underlying offence:
the first person’s conduct gives rise to a danger of death or serious harm to the victim; and
the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
In this section:
serious harm has the same meaning as in the Criminal Code.
(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
at least 5 of the other persons are non-citizens; and
the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see Criminal Code.section 6.2 of the
If, on a trial for an offence against subsection (1), the trier of fact:
is not satisfied that the defendant is guilty of that offence; and
is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;
the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver); and
the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
the first person; or
a group of persons that includes the first person.
To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
(1) A person (the first person) commits an offence if:
(a) the first person conceals another person (the second person); and
the second person is a non-citizen; and
the first person engages in the conduct with the intention that the second person will enter Australia in contravention of this Act.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) A person (the first person) commits an offence if:
(a) the first person conceals another person (the second person); and
the second person is an unlawful non-citizen or a deportee; and
the first person engages in the conduct with the intention of preventing discovery by an officer of the second person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(3) A person (the first person) commits an offence if:
(a) the first person harbours another person (the second person); and
the second person is an unlawful non-citizen, a removee or a deportee.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
A person shall not transfer or part with possession of a document:
with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
A person must not, in connection with:
the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more non-citizens (which may include that person), or of any member of such a group; or
an application for a visa or a further visa permitting a group of 5 or more non-citizens (which may include that person), or any member of such a group, to remain in Australia;
do any of the following:
present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false;
make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;
deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise give, or cause to be given, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
A person must not transfer or part with possession of a document or documents:
with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or
if the person has reason to suspect that the document or documents may be so used.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
A person commits an offence if:
the person uses a visa with the intention of:
travelling to Australia; or
remaining in Australia; or
identifying himself or herself; and
the visa is a visa that was granted to another person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
A person commits an offence if:
the person has a visa in his or her possession or under his or her control; and
the visa is a visa that was not granted to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
The fault element for paragraph (2)(a) is intention.
Note: Section 5.2 of the Criminal Code defines intention.
The court may only make an order under Crimes Act 1914 (discharge of offenders without conviction) in respect of a charge for an offence against section 233B, 233C or 234A if the person charged was aged under 18 when the offence was alleged to have been committed.section 19B of the
Note: See also section 236D, which relates to age.
This section applies if a person is convicted of an offence against section 233B, 233C or 234A.
This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
The court must impose a sentence of imprisonment of at least:
if the conviction is for an offence against section 233B—8 years; or
if the conviction is for a repeat offence—8 years; or
in any other case—5 years.
The court must also set a non-parole period of at least:
if the conviction is for an offence to which paragraph (3)(a) or (b) applies—5 years; or
in any other case—3 years.
(5) A person’s conviction for an offence is for a repeat offence if:
in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or
has found, without recording a conviction, that the person has committed another such offence; or
(b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or
has found, without recording a conviction, that the person has committed another such offence.
In this section:
non-parole period has the same meaning as it has in Part IB of the Crimes Act 1914.
This section applies to the court when imposing a sentence on, or setting a non-parole period for, a person convicted of an offence against this Subdivision.
The court must take into account any period that the person has spent in immigration detention during the period:
starting when the offence was committed; and
ending when the person is sentenced for the offence.
Note: This enables the court to take into account time spent while not in punitive detention.
(3) Neither Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non-parole period.section 236B nor this section prevents section 16E of the
Note: Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions.
If, in proceedings relating to an offence against this Subdivision:
the defendant claims to have been aged under 18 at the time the offence was alleged to have been, or was, committed, and
the prosecution disputes this claim;
the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over at that time.
Issuing a certificate
(1) A written certificate may be issued under this subsection if an authorisation authorises the exercise of maritime powers in relation to a vessel or aircraft (the target vessel or aircraft). The certificate may be issued by:
the authorising officer who gave the authorisation; or
a maritime officer who boards the target vessel or aircraft in accordance with the authorisation.
Note: For definitions for this section, see subsection (6).
Certificate is prima facie evidence of the matters in it
The certificate is to be received in proceedings for an offence against this Subdivision as prima facie evidence of the matters stated in the certificate.
Matters that can be specified in a certificate
The certificate may specify one or more of the following:
the location of the target vessel or aircraft during the exercise of those maritime powers;
the location, during the exercise of those maritime powers, of a Commonwealth ship or Commonwealth aircraft from which the exercise of those maritime powers was directed or coordinated;
the contents of any list of passengers on board the target vessel or aircraft, or passenger cards relating to passengers on board the target vessel or aircraft;
the number of passengers on board the target vessel or aircraft;
the number of crew on board the target vessel or aircraft;
(f) details about anything a maritime officer did under subsection 64(1), or Maritime Powers Act 2013 (about securing things) in the exercise of those maritime powers;section 66, of the
any other matter prescribed under subsection (5).
Subsection (2) does not apply to so much of the certificate as specifies whether a person is the master, owner, agent or charterer of the target vessel or aircraft.
The Minister may, by legislative instrument, prescribe other matters that may be specified in a certificate issued under subsection (1).
Definitions
In this section:
authorisation has the same meaning as in the Maritime Powers Act 2013.
authorising officer has the same meaning as in the Maritime Powers Act 2013.
Commonwealth aircraft has the same meaning as in the Maritime Powers Act 2013.
Commonwealth ship has the same meaning as in the Maritime Powers Act 2013.
maritime powers has the same meaning as in the Maritime Powers Act 2013.
A certificate issued under subsection 236E(1) must not be admitted in evidence in proceedings for an offence unless:
the person charged with the offence; or
a lawyer who has appeared for the person in those proceedings;
has, at least 28 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.
If, under section 236E, a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be:
called as a witness for the prosecution; and
cross-examined as if the person who signed the certificate had given evidence of the matters stated in the certificate.
However, subsection (2) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:
the prosecutor has been given at least 21 days’ notice of the person’s intention to require the person who signed the certificate to be so called; and
the court, by order, allows the person charged to require the person who signed the certificate to be so called.
Any evidence given in support, or in rebuttal, of a matter stated in a certificate issued under subsection 236E(1) must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.
Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents
This Subdivision was enacted because:
under the regulations, a person satisfies a criterion for certain visas that give, or might lead to, authorisation for the person’s permanent residence in Australia if the person is the spouse or de facto partner of, and has a genuine and continuing relationship, involving a shared life to the exclusion of all others with, either an Australian citizen or a permanent resident of Australia; and
some persons attempt to get permanent residence under the regulations by:
entering into a married relationship that is not intended to be a genuine and continuing relationship involving a shared life to the exclusion of all others; or
pretending to be a de facto partner of another person.
In this Subdivision:
criterion includes part of a criterion.
preliminary visa, means a visa that is usually applied for by persons applying, or intending to apply, for a permanent visa.
stay visa means:
a permanent visa; or
a preliminary visa.
This Subdivision applies in and outside Australia.
This Subdivision applies to marriages solemnized outside Australia as well as those solemnized in Australia.
A person must not arrange a marriage between other persons with the intention of assisting one of those other persons to get a stay visa by satisfying a criterion for the visa because of the marriage.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Subsection (1) applies whether or not the intention is achieved.
It is a defence to an offence against subsection (1) if the defendant proves that, although one purpose of the marriage was to assist a person to get a stay visa, the defendant believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship.
Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see Criminal Code).section 13.4 of the
If a person knows or believes on reasonable grounds that 2 other persons are not de facto partners of each other, the person must not make arrangements that make, or help to make, it look as if those other persons are such de facto partners with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of being such de facto partners.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Subsection (1) applies whether or not the intention is achieved.
A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being the spouse or de facto partner of another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate.
A non-citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non-citizen.
A person must not nominate an applicant for a stay visa on the basis of the applicant satisfying a criterion for the visa because of being the spouse or de facto partner of the person if, at the time of the application, the person does not intend to live permanently with the applicant in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate.
Penalty: Imprisonment for 2 years.
A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:
whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));
whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
if:
the person knows that the statement or information is false or misleading in a material particular; and
the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.
Penalty: Imprisonment for 12 months.
A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:
whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));
whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
if:
the statement or information is false or misleading in a material particular; and
the person making the statement, or giving the information, did not make appropriate inquiries to satisfy himself or herself that the statement or information was neither false nor misleading; and
the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.
Penalty for a contravention of this subsection: 120 penalty units.
Subdivision C—Offences and civil penalties in relation to work by non-citizens
This Subdivision creates offences, and provides for civil penalties, to deal with the following situations:
where a person coerces, or exerts undue influence or undue pressure on, a lawful non-citizen to accept or agree to an arrangement in relation to work:
involving a breach of a work-related condition applying to a visa held by the lawful non-citizen; or
to avoid an adverse effect on the lawful non-citizen’s status as a lawful non-citizen; or
to satisfy certain requirements to provide information or documents about work the lawful non-citizen has done in Australia;
where a person coerces, or exerts undue influence or undue pressure on, an unlawful non-citizen to accept or agree to an arrangement in relation to work to avoid an adverse effect on the unlawful non-citizen’s continued presence in Australia;
where a person allows an unlawful non-citizen to work, or refers an unlawful non-citizen for work;
where a person allows a non-citizen to work, or refers a non-citizen for work, in breach of the non-citizen’s visa conditions.
This Subdivision uses a number of terms that are defined in the following sections:
(a) unlawful non-citizen);section 14 (defines
(b) work and allows to work);section 245AG (defines
(ba) arrangement in relation to work);section 245AGA (defines
(c) exploited).section 245AH (defines
To avoid doubt, section 245AF sets out some circumstances in which this Subdivision does not apply.
(1) A person (the first person) contravenes this subsection if:
(a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and
the worker is a lawful non-citizen; and
the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; and
the worker holds a visa that is subject to a work-related condition; and
either:
the worker is in breach of the work-related condition solely because of doing the work in accordance with the arrangement; or
the worker would be in breach of the work-related condition if the worker were to do the work in accordance with the arrangement.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c), (d) and (e) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
(1) A person (the first person) contravenes this subsection if:
(a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and
the worker is an unlawful non-citizen; and
the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; and
the first person’s conduct mentioned in paragraph (a) results in the worker believing that, if the worker does not accept or agree to the arrangement, there will be an adverse effect on the worker’s continued presence in Australia.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
(1) A person (the first person) contravenes this subsection if:
(a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and
the worker is a lawful non-citizen (other than a holder of a permanent visa); and
the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; and
the first person’s conduct mentioned in paragraph (a) results in the worker believing that, if the worker does not accept or agree to the arrangement:
there will be an adverse effect on the worker’s status as a lawful non-citizen; or
the worker will be unable to provide information or documents about work the worker has done in Australia that the worker is required, under this Act or the regulations, to provide in connection with a visa held by the worker or an application for a visa by the worker.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
(1) A person (the first person) contravenes this subsection if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
the worker is an unlawful non-citizen.
Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:
using a computer system prescribed by the regulations to verify that matter;
doing any one or more things prescribed by the regulations.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (3), the fault element for paragraph (1)(b) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
(1) A person (the first person) contravenes this subsection if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
the worker is a lawful non-citizen; and
the worker holds a visa that is subject to a work-related condition; and
the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a).
Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:
using a computer system prescribed by the regulations to verify that matter;
doing any one or more things prescribed by the regulations.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
Allowing an unlawful non-citizen to work
(1) A person (the first person) commits an offence if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
the worker is an unlawful non-citizen; and
the worker is being exploited; and
the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b) and (c).
Note: See exploited.section 245AH for when a person is being
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
Allowing a lawful non-citizen to work in breach of a work-related condition
(2) A person (the first person) commits an offence if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
the worker is a lawful non-citizen; and
the worker holds a visa that is subject to a work-related condition; and
the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a); and
the worker is being exploited; and
the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b), (c), (d) and (e).
Note: See exploited.section 245AH for when a person is being
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
(1) A person (the first person) contravenes this subsection if:
the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person for work; and
at the time of the referral, the prospective worker is an unlawful non-citizen.
Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:
using a computer system prescribed by the regulations to verify that matter;
doing any one or more things prescribed by the regulations.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
(1) A person (the first person) contravenes this subsection if:
the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person for work; and
at the time of the referral:
the prospective worker is a lawful non-citizen; and
the prospective worker holds a visa that is subject to a work-related condition; and
the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.
Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps:
using a computer system prescribed by the regulations to verify that matter;
doing any one or more things prescribed by the regulations.
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
Referring an unlawful non-citizen for work
(1) A person (the first person) commits an offence if:
the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person for work; and
at the time of the referral, the prospective worker is an unlawful non-citizen; and
the prospective worker will be exploited in doing that work, or any other work, for the third person; and
the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d).
Note: See exploited.section 245AH for when a person will be
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
Referring a lawful non-citizen for work in breach of a work-related condition
(2) A person (the first person) commits an offence if:
the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person for work; and
at the time of the referral:
the prospective worker is a lawful non-citizen; and
the prospective worker holds a visa that is subject to a work-related condition; and
the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred; and
the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work, for the third person; and
the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d).
Note: See exploited.section 245AH for when a person will be
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
To avoid doubt, this Subdivision does not apply where:
a detainee in immigration detention voluntarily engages in an activity of a kind approved in writing by the Secretary for the purposes of this paragraph; or
a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages in an activity as a prisoner; or
a person engages in an activity in compliance with:
(i) a sentence passed, or an order made, under subsection 20AB(1) of the Crimes Act 1914 (community service orders etc.); or
a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.
In this Subdivision:
work means any work, whether for reward or otherwise.
(2) In this Subdivision, a person allows a person to work if, and only if:
the first person employs the second person under a contract of service; or
the first person engages the second person, other than in a domestic context, under a contract for services; or
the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for:
the first person; or
another participant in the arrangement or any such arrangement; or
the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or
(d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services within the meaning of the Criminal Code (see the Dictionary to the Criminal Code); or
the prescribed circumstances exist.
In paragraph (2)(d):
premises means:
an area of land or any other place, whether or not it is enclosed or built on; or
a building or other structure; or
a vehicle or vessel.
(1) For the purposes of this Subdivision, arrangement in relation to work means an arrangement, in connection with a person (the first person) allowing another person to work, for the other person to:
accept certain conditions; or
perform, or refrain from performing, an activity, whether for the first person or someone else; or
participate in, or refrain from participating in, an activity, whether for the first person or someone else.
To avoid doubt, a reference in subsection (1) to an activity includes a reference to a work-related activity or a non-work-related activity.
Examples: An arrangement in relation to work includes, but is not limited to, an arrangement for a person to:
accept unsafe housing provided or arranged by the first person or another person; or
surrender the person’s passport to the first person or another person; or
perform sexual favours for the first person or another person.
For the purposes of this Subdivision, a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code (see section 271.1A of the Criminal Code).
An executive officer of a body corporate commits an offence if:
(a) the body commits an offence (the work-related offence) against this Subdivision; and
the officer knew that, or was reckless or negligent as to whether, the work-related offence would be committed; and
the officer was in a position to influence the conduct of the body in relation to the work-related offence; and
the officer failed to take all reasonable steps to prevent the work-related offence being committed.
An offence against subsection (1) is punishable on conviction by a pecuniary penalty not exceeding one-fifth of the maximum pecuniary penalty that a court could impose on the body corporate for the work-related offence.
Reasonable steps to prevent the offence
In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related offence being committed by the body, a court must have regard to:
what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was committing the work-related offence.
Subsection (3) does not limit subsection (1).
Definition
In this section:
executive officer of a body corporate means:
a director of the body corporate; or
the chief executive officer (however described) of the body corporate; or
the chief financial officer (however described) of the body corporate; or
the secretary of the body corporate.
An executive officer of a body corporate contravenes this subsection if:
(a) the body contravenes (the work-related contravention) a civil penalty provision in this Subdivision; and
the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur; and
the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and
the officer failed to take all reasonable steps to prevent the work-related contravention.
Civil penalty provision
An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1).
Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this subsection.
Civil penalty: 240 penalty units.
Reasonable steps to prevent the contravention
In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related contravention by the body, a court must have regard to:
what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was engaging in the work-related contravention.
Subsection (3) does not limit subsection (1).
Definitions
In this section:
executive officer of a body corporate means:
a director of the body corporate; or
the chief executive officer (however described) of the body corporate; or
the chief financial officer (however described) of the body corporate; or
the secretary of the body corporate.
negligent: an executive officer of a body corporate is negligent as to whether a work-related contravention would occur if the officer’s conduct involves:
such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
such a high risk that the work-related contravention would occur;
that the conduct merits the imposition of a pecuniary penalty.
reckless: an executive officer of a body corporate is reckless as to whether a work-related contravention would occur if:
the officer is aware of a substantial risk that the work-related contravention would occur; and
having regard to the circumstances known to the officer, it is unjustifiable to take the risk.
(1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.
For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision.
Enforceable provisions
(1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:
a work-related offence;
a work-related provision.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
For the purposes of Part 6 of the Regulatory Powers Act, the Minister is an authorised person in relation to the provisions mentioned in subsection (1).
The Minister may, in writing, delegate the Minister’s powers and functions under Part 6 of the Regulatory Powers Act to an authorised officer in relation to the provisions mentioned in subsection (1).
The Minister may delegate a power or function under subsection (3) only if the Minister is satisfied that the authorised officer has appropriate qualifications, training or experience to exercise the power or perform the function.
An authorised officer exercising powers or performing functions under a delegation under subsection (3) must comply with any directions of the Minister.
Relevant court
For the purposes of Part 6 of the Regulatory Powers Act, an eligible court is a relevant court in relation to the provisions mentioned in subsection (1).
Enforceable undertaking may be published on the internet
An authorised person in relation to a provision mentioned in subsection (1) may publish an undertaking given in relation to the provision on the Department’s website.
Extension to external Territories
Part 6 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to a Territory to which this Act extends.
Note: See section 7 of this Act.
Relationship with civil penalty orders
The Minister must not apply for an order under subsection 486R(1) (civil penalty orders) in relation to a contravention of a work-related provision by a person if an undertaking given by the person under Part 6 of the Regulatory Powers Act in relation to the contravention has not been withdrawn.
Offences
(1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.
Contraventions of civil penalty provisions
An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:
the person’s conduct that allegedly contravenes the provision occurs:
wholly or partly in Australia; or
wholly or partly on board an Australian aircraft or an Australian ship; or
the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:
an Australian citizen; or
a resident of Australia; or
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
all of the following conditions are satisfied:
(i) the person’s conduct allegedly contravenes the provision because of ancillary contravention);section 486ZD (the
the conduct occurs wholly outside Australia;
the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defences relating to contraventions of civil penalty provisions
In civil proceedings relating to a primary contravention by a person, it is a defence if:
the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
the person is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
there is not in force in:
the foreign country where the conduct constituting the alleged primary contravention occurs; or
the part of the foreign country where the conduct constituting the alleged primary contravention occurs;
a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.
(4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:
the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
the person is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
there is not in force in:
the foreign country where the primary conduct occurs or is intended by the person to occur; or
the part of the foreign country where the primary conduct occurs or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.
A defendant bears an evidential burden in relation to the matter in subsection (3) or (4).
Attorney-General’s consent needed for certain proceedings
Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney-General’s written consent if:
the conduct constituting the alleged contravention occurs wholly in a foreign country; and
at the time of the alleged contravention, the person alleged to have contravened the provision is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
When conduct taken to occur partly in Australia
For the purposes of this section, if a person sends a thing, or causes a thing to be sent:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
For the purposes of this section, if a person sends, or causes to be sent, an electronic communication:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Definitions
In this section:
Australian aircraft has the same meaning as in the Criminal Code.
Australian ship has the same meaning as in the Criminal Code.
electronic communication has the same meaning as in the Criminal Code.
foreign country has the same meaning as in the Criminal Code.
point has the same meaning as in section 16.2 of the Criminal Code.
primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD.
resident of Australia has the same meaning as in the Criminal Code.
If the prosecution intends to prove an offence against subsection 245AD(1) or (2), the charge must allege that the worker referred to in that subsection has been exploited.
If the prosecution intends to prove an offence against subsection 245AEB(1) or (2), the charge must allege that the prospective worker referred to in that subsection has been or will be exploited:
in doing the work in relation to which the prospective worker was referred; or
in doing other work for the person to whom the prospective worker was referred.
On a trial for an offence against section 245AD, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AB or 245AC if:
the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AD; and
the trier of fact is satisfied that the defendant is guilty of an offence against section 245AB or 245AC; and
the defendant has been accorded procedural fairness in relation to that finding of guilt.
On a trial for an offence against section 245AEB, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AE or 245AEA if:
the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AEB; and
the trier of fact is satisfied that the defendant is guilty of an offence against section 245AE or 245AEA; and
the defendant has been accorded procedural fairness in relation to that finding of guilt.
This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section.
An offence against this Subdivision that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner).
A civil penalty provision in this Subdivision that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the partner).
This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.
An offence against this Subdivision that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member).
A civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member).
For the purposes of a relevant workplace law, any effect of this Subdivision on the validity of a contract of service, or the validity of a contract for services, is to be disregarded.
In this section:
relevant workplace law means:
(a) another law of the Commonwealth (other than the Fair Work Act 2009) that regulates the relationships between the parties to a contract of service, or a contract for services, in relation to the performance of work; or
a law of a State or Territory that regulates the relationships between the parties to a contract of service, or a contract for services, in relation to the performance of work;
and includes a law dealing with occupational health and safety matters and a law dealing with workers’ compensation.
Subdivision D—Offences and civil penalties in relation to sponsored visas
Note: Section 40B of the Fair Work Act 2009 also provides that for the purposes of that Act, any effect of this Act, or an instrument made under this Act, on the validity of a contract of employment, or a contract for services, is to be disregarded.
In this Subdivision:
benefit includes:
a payment or other valuable consideration; and
a deduction of an amount; and
any kind of real or personal property; and
an advantage; and
a service; and
a gift.
executive officer of a body corporate means:
a director of the body corporate; or
the chief executive officer (however described) of the body corporate; or
the chief financial officer (however described) of the body corporate; or
the secretary of the body corporate.
sponsor class means a prescribed class of work sponsor or family sponsor.
sponsored visa means a visa of a prescribed kind (however described).
sponsorship-related event means any of the following events: a person applying for approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class; a person applying for a variation of a term of an approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class; a person becoming, or not ceasing to be, a party to a work agreement; a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa; a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa; a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa; a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; the grant of a sponsored visa; a prescribed event.
a person applying for approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class;
a person applying for a variation of a term of an approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class;
a person becoming, or not ceasing to be, a party to a work agreement;
a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;
a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;
a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;
a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;
a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;
the grant of a sponsored visa;
a prescribed event.
(1) A person (the first person) contravenes this subsection if:
the first person asks for, or receives, a benefit from another person; and
the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship-related event.
To avoid doubt, the first person contravenes subsection (1) even if the sponsorship-related event does not occur.
Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
Civil penalty provision
A person is liable to a civil penalty if a person contravenes subsection (1).
Civil penalty: 240 penalty units.
A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
(1) A person (the first person) contravenes this subsection if:
(a) the first person offers to provide, or provides, a benefit to another person (the second person); and
the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship-related event.
Civil penalty: 240 penalty units.
To avoid doubt, the first person contravenes subsection (1) even if the sponsorship-related event does not occur.
Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person.
A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
An executive officer of a body corporate commits an offence if:
(a) the body commits an offence (the sponsorship-related offence) against this Subdivision; and
the officer knew that, or was reckless or negligent as to whether, the sponsorship-related offence would be committed; and
the officer was in a position to influence the conduct of the body in relation to the sponsorship-related offence; and
the officer failed to take all reasonable steps to prevent the sponsorship-related offence being committed.
Penalty: 360 penalty units.
In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship-related offence being committed by the body, a court must have regard to:
what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was committing the sponsorship-related offence.
Subsection (2) does not limit subsection (1).
An executive officer of a body corporate contravenes this subsection if:
(a) the body contravenes (the sponsorship-related contravention) a civil penalty provision in this Subdivision; and
the officer knew that, or was reckless or negligent as to whether, the sponsorship-related contravention would occur; and
the officer was in a position to influence the conduct of the body in relation to the sponsorship-related contravention; and
the officer failed to take all reasonable steps to prevent the sponsorship-related contravention.
Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to a contravention of this subsection.
Civil penalty provision
An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1).
Civil penalty: 240 penalty units.
Reasonable steps to prevent the contravention
In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship-related contravention by the body, a court must have regard to:
what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was engaging in the sponsorship-related contravention.
Subsection (3) does not limit subsection (1).
Definitions
In this section:
negligent: an executive officer of a body corporate is negligent as to whether a sponsorship-related contravention would occur if the officer’s conduct involves:
such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
such a high risk that the sponsorship-related contravention would occur;
that the conduct merits the imposition of a pecuniary penalty.
reckless: an executive officer of a body corporate is reckless as to whether a sponsorship-related contravention would occur if:
the officer is aware of a substantial risk that the sponsorship-related contravention would occur; and
having regard to the circumstances known to the officer, it is unjustifiable to take the risk.
(1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.
For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision.
Offences
(1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.
Contraventions of civil penalty provisions
An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:
the person’s conduct that allegedly contravenes the provision occurs:
wholly or partly in Australia; or
wholly or partly on board an Australian aircraft or an Australian ship; or
the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:
an Australian citizen; or
a resident of Australia; or
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
all of the following conditions are satisfied:
(i) the person’s conduct allegedly contravenes the provision because of ancillary contravention);section 486ZD (the
the conduct occurs wholly outside Australia;
the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defences relating to contraventions of civil penalty provisions
In civil proceedings relating to a primary contravention by a person, it is a defence if:
the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
the person is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
there is not in force in:
the foreign country where the conduct constituting the alleged primary contravention occurs; or
the part of the foreign country where the conduct constituting the alleged primary contravention occurs;
a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.
(4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:
the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
the person is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
there is not in force in:
the foreign country where the primary conduct occurs or is intended by the person to occur; or
the part of the foreign country where the primary conduct occurs or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.
A defendant bears an evidential burden in relation to the matter in subsection (3) or (4).
Attorney-General’s consent needed for certain proceedings
Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney-General’s written consent if:
the conduct constituting the alleged contravention occurs wholly in a foreign country; and
at the time of the alleged contravention, the person alleged to have contravened the provision is neither:
an Australian citizen; nor
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
When conduct taken to occur partly in Australia
For the purposes of this section, if a person sends a thing, or causes a thing to be sent:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
For the purposes of this section, if a person sends, or causes to be sent, an electronic communication:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Definitions
In this section:
Australian aircraft has the same meaning as in the Criminal Code.
Australian ship has the same meaning as in the Criminal Code.
electronic communication has the same meaning as in the Criminal Code.
foreign country has the same meaning as in the Criminal Code.
point has the same meaning as in section 16.2 of the Criminal Code.
primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD.
resident of Australia has the same meaning as in the Criminal Code.
This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section.
An offence against this Subdivision that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner).
A civil penalty provision in this Subdivision that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the partner).
This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.
An offence against this Subdivision that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member).
A civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member).
Subdivision E—Prohibited employers
The objects of this Subdivision are as follows:
to protect, to the extent possible, non-citizens (other than holders of permanent visas) from being exploited, or further exploited, by employers;
to ensure that such non-citizens are not exposed to employers or workplaces that have engaged in serious, deliberate or repeated non-compliance with certain laws;
to ensure that non-compliance is dealt with in a way that considers the impact of any sanctions on such non-citizens, the employer and the community as a whole.
This Subdivision aims to achieve its objects by:
empowering the Minister to declare persons to be prohibited employers; and
requiring the Minister to ensure that imposing such a prohibition, including the duration of such a prohibition, is proportionate to the person’s misconduct; and
requiring the Minister to consider the impact on non-citizens (other than holders of permanent visas) of making such a declaration; and
encouraging employers to demonstrate their ability to:
remediate their non-compliance; and
comply with the law relating to migrant worker sanctions in the future.
This Subdivision provides for the Minister to declare a person to be a prohibited employer for a specified period if:
the person is subject to a migrant worker sanction; and
no more than 5 years have passed since the person became subject to that sanction.
Sections 245AYE to 245AYJ set out when a person is subject to a migrant worker sanction.
While a declaration is in effect, a prohibited employer must not:
allow certain additional non-citizens to begin work; or
have a material role in a decision made by a body corporate or other body to allow certain additional non-citizens to begin work.
After a person stops being a prohibited employer, the person must give the Department specified information about certain lawful non-citizens who the person allows to begin to work in the 12 month period after so ceasing.
In this Subdivision:
ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
allows a non-citizen to begin work has the meaning given by section 245AYC.
Fair Work Ombudsman means the Fair Work Ombudsman provided for by section 681 of the Fair Work Act 2009.
FW order means an order under Division 2 of Part 4-1 of the Fair Work Act 2009.
inspector has the same meaning as in the Fair Work Act 2009.
migrant worker sanction has the meaning given by sections 245AYE to 245AYJ.
prohibited employer has the meaning given by section 245AYD.
work means any work, whether for reward or otherwise.
(1) A person allows a non-citizen to begin work at a particular time if, and only if:
the person employs the non-citizen by entering into a contract of service at that time; or
the person engages the non-citizen by entering into a contract for services at that time; or
the person begins at that time to participate in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the non-citizen for:
the person; or
another participant in the arrangement or any such arrangement; or
the person enters into a contract at that time to bail or license a chattel to the non-citizen or another person with the intention that the non-citizen will use the chattel to perform a transportation service; or
(e) the person enters into a contract at that time to lease or license premises, or a space within premises, to the non-citizen or another person with the intention that the non-citizen will use the premises or space to perform sexual services (within the meaning of the Criminal Code); or
the prescribed circumstances exist at that time.
Note: Other parts of speech and grammatical forms of “allows a non-citizen to begin work” (for example, “the non-citizen is allowed to begin work”) have a corresponding meaning (see Acts Interpretation Act 1901).section 18A of the
In paragraph (1)(e):
premises means:
an area of land or any other place, whether or not it is enclosed or built on; or
a building or other structure; or
a vehicle or vessel.
A person is a prohibited employer at a particular time if:
a declaration in relation to the person has been made under subsection 245AYK(1); and
the declaration is in effect at that time.
Bar placed on approved work sponsor
(1) A person is subject to a migrant worker sanction if:
the person is an approved work sponsor; and
a bar is placed on the person under paragraph 140M(1)(c) or (d); and
either:
the person has not requested the Minister to waive the bar in accordance with any regulations made for the purposes of section 140P; or
if the person has made such a request—the Minister has not waived the bar under subsection 140O(2).
Failure to comply with compliance notice
(2) A person is subject to a migrant worker sanction if:
the person is or was an approved work sponsor; and
a civil penalty order is made against the person in relation to a contravention of subsection 140RB(5).
Conviction of work-related offence
(1) A person is subject to a migrant worker sanction if the person is convicted of a work-related offence.
Conviction of certain offences against humanity
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the person has been convicted of an offence against the following provisions of the Criminal Code:
Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B);
Division 271 (other than Subdivision BA); and
the person engaged in the relevant conduct in Australia; and
the offence related, wholly or partly, to another person who, at the time the relevant conduct was engaged in, was a non-citizen (other than the holder of a permanent visa).
Conviction of certain offences against the Fair Work Act 2009 etc.
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the person has been convicted of an offence against the Fair Work Act 2009, or a relevant workplace law, that is an offence of a kind prescribed by the regulations; and
the offence related, wholly or partly, to a prescribed person who, at the time the relevant conduct was engaged in, was a non-citizen (other than the holder of a permanent visa); and
any circumstances prescribed by the regulations apply in relation to the offence.
Contravention of certain civil penalty provisions of this Act
(1) A person is subject to a migrant worker sanction if:
a civil penalty order has been made against the person in relation to the contravention of a work-related provision; or
both of the following apply:
a civil penalty order has been made against the person in relation to a contravention of another civil penalty provision prescribed by the regulations;
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).
Contravention of certain provisions of relevant workplace law
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
a court has made an order under a relevant workplace law that the person pay a pecuniary penalty for a contravention of a provision of that law; and
the provision is prescribed by the regulations; and
the order was not made in criminal proceedings; and
the contravention related, wholly or partly, to a prescribed person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and
any circumstances prescribed by the regulations apply in relation to the contravention of the provision.
Contravention of civil remedy provisions (within the meaning of the Fair Work Act 2009)
(1) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of a civil remedy provision (within the meaning of the Fair Work Act 2009); and
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).
Contravention relating to the advertisement of rates of pay
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of subsection 536AA(1) or (2) of the Fair Work Act 2009 (employer obligations in relation to advertising rates of pay); or
both of the following apply:
a FW order has been made against the person in relation to a contravention of subsection 716(5) of that Act (failure to comply with compliance notice);
the relevant compliance notice given under section 716 of that Act related to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay).
Contravention relating to compliance notices
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of subsection 716(5) of the Fair Work Act 2009 (failure to comply with compliance notice); and
(b) the relevant compliance notice given under original contravention) of:section 716 of that Act related to a contravention (the
a provision of the National Employment Standards (within the meaning of that Act); or
a term of a modern award (within the meaning of that Act); or
a term of an enterprise agreement (within the meaning of that Act); or
a term of a workplace determination (within the meaning of that Act); or
a term of a national minimum wage order (within the meaning of that Act); or
a term of an equal remuneration order (within the meaning of that Act); and
the original contravention related, wholly or partly, to another person who, at the time of the original contravention, was a non-citizen (other than the holder of a permanent visa).
Undertaking in relation to contravention of civil remedy provision (within the meaning of the Fair Work Act 2009)
(1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); andsection 715 of the
a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking; and
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).
(2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); andsection 715 of the
all of the following apply:
the undertaking has not been withdrawn;
an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;
a court has not made one or more orders under that subsection in relation to the undertaking; and
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and
the first person has contravened a term of the undertaking.
Undertaking in relation to contravention relating to advertisement of rates of pay
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the person under Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); andsection 715 of the
a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking.
(4) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the person under Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); andsection 715 of the
all of the following apply:
the undertaking has not been withdrawn;
an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;
a court has not made one or more orders under that subsection in relation to the undertaking; and
the person has contravened a term of the undertaking.
Compliance notice in relation to contravention of relevant fair work provision
(1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:
a provision of the National Employment Standards (within the meaning of that Act); or
a term of a modern award (within the meaning of that Act); or
a term of an enterprise agreement (within the meaning of that Act); or
a term of a workplace determination (within the meaning of that Act); or
a term of a national minimum wage order (within the meaning of that Act); or
a term of an equal remuneration order (within the meaning of that Act); and
a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and
the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.
(2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:
a provision of the National Employment Standards (within the meaning of that Act); or
a term of a modern award (within the meaning of that Act); or
a term of an enterprise agreement (within the meaning of that Act); or
a term of a workplace determination (within the meaning of that Act); or
a term of a national minimum wage order (within the meaning of that Act); or
a term of an equal remuneration order (within the meaning of that Act); and
all of the following apply:
the compliance notice has not been withdrawn;
the first person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;
a court has not cancelled the compliance notice after reviewing it under that subsection; and
the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and
the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.
Compliance notice in relation to contravention relating to advertisement of rates of pay
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and
the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing.
(4) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
all of the following apply:
the compliance notice has not been withdrawn;
the person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;
a court has not cancelled the compliance notice after reviewing it under that subsection; and
the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing.
The Minister may, in writing, declare a person to be a prohibited employer for a period if:
the person is subject to a migrant worker sanction under a particular provision of this Subdivision; and
the period of 5 years starting on the day the person became subject to a migrant worker sanction under that provision has not ended.
Note: A person may be subject to a migrant worker sanction under more than one provision of this Subdivision or subject to a migrant worker sanction multiple times under a single such provision. There is a separate 5 year period each time the person becomes subject to a migrant worker sanction.
A declaration made under subsection (1) is not a legislative instrument.
Note: A declaration made under subsection (1) can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Process before making declaration
Before the Minister declares a person to be a prohibited employer for a period, the Minister must give the person a written notice:
stating that the Minister proposes to make such a declaration and the reasons for it; and
inviting the person to make a written submission to the Minister, within the period covered by subsection (4), setting out reasons why the Minister should not make the declaration.
The period covered by this subsection is whichever of the following periods ends later:
the period ending 28 days after the day the person is given notice by the Minister under subsection (3);
if a period is stated in that notice for the making of a written submission—the period stated.
(5) In making a decision about whether to declare a person (the first person) to be a prohibited employer for a period, the Minister must consider:
any written submission made by the first person under subsection (3) that is received by the Minister within the period covered by subsection (4); and
(b) the nature and severity of the non-compliance (the relevant non-compliance) to which the migrant worker sanction relates; and
the impact the relevant non-compliance has had on:
the non-citizen to whom the migrant worker sanction relates; and
any other individuals affected by the non-compliance; and
the relevant industry, including impact on the reputation of the industry, economic repercussions and any other relevant issues that may have an impact on the operations of the industry; and
whether the relevant non-compliance was intentional, reckless or inadvertent; and
the likely impact making the declaration would have on:
other persons employed by the first person; and
services in the community provided by the first person; and
the first person’s history of compliance or non-compliance with the laws to which migrant worker sanctions relate; and
the first person’s response to the relevant non-compliance; and
how much time has passed since the relevant non-compliance occurred and any sanctions that have already been imposed on the first person in relation to the relevant non-compliance; and
any action the first person has taken to report the relevant non-compliance or to ensure future compliance with the laws to which migrant worker sanctions relate.
Notification and duration of declaration
If the Minister declares a person to be a prohibited employer, the Minister must, as soon as reasonably practicable, give the person a copy of the declaration.
The declaration comes into effect at the start of whichever of the following days is later:
the day after the day the declaration is given to the person;
the day stated in the declaration as the day the declaration comes into effect.
The declaration has effect during the period specified in the declaration (unless sooner revoked).
For the purposes of subsection (8), the maximum period that can be specified in the declaration is set out in the following table.
Review by the Administrative Review Tribunal
Applications may be made to the ART for review of a decision under subsection (1) to declare a person to be a prohibited employer.
Note: Section 266 of the ART Act requires that people whose interests are affected by the Minister’s decision be given notice of their rights to seek review of the decision.
(1) A person (the first person) contravenes this subsection if:
the first person is a prohibited employer at a particular time; and
either:
the first person allows a non-citizen to begin work at that time; or
the first person has a material role in a decision made by a body corporate or other body to allow a non-citizen to begin work at that time; and
at that time, the non-citizen is either:
an unlawful non-citizen; or
a lawful non-citizen (other than a holder of a permanent visa).
Offence
A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
For the purposes of subsection (2), the fault element for subparagraph (1)(b)(ii) is intention by the first person.
Civil penalty provision
A person who contravenes subsection (1) is liable to a civil penalty.
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 240 penalty units.
If the Minister makes a declaration under subsection 245AYK(1) in relation to a person, the Minister must cause to be published on the Department’s website the following information:
the name of the person;
the person’s ABN (if any);
any other information that the Minister considers is reasonably necessary to identify the person;
the reasons for making the declaration;
the period for which the declaration has effect.
Subsection (1) does not apply in the prescribed circumstances.
Information published under subsection (1) must not include personal information about any individual other than the prohibited employer.
No civil liability arises from action taken by a person in good faith in publishing information under subsection (1).
To avoid doubt, the Minister is not required to arrange for the removal, from the Department’s website, of information published under subsection (1) when the person stops being a prohibited employer.
This section applies if:
(a) a person was a prohibited employer for a particular period (the prohibition period); and
(b) the person allows a non-citizen to begin work on a particular day (the start day) during the 12-month period starting on the day after the prohibition period ends; and
the non-citizen is a lawful non-citizen (other than the holder of a permanent visa).
The person must, before the end of the 28-day period starting on the start day, give the Department a written notice that:
sets out the name of the non-citizen; and
specifies the kind of visa held by the non-citizen; and
specifies the work to be done by the non-citizen; and
if the non-citizen holds a visa that is subject to one or more work-related conditions:
sets out each of those conditions; and
states that the non-citizen will not be in breach of those conditions solely because of doing that work; and
sets out any other prescribed information.
A person is liable to a civil penalty if the person contravenes subsection (2).
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 48 penalty units.
Before the Governor-General makes a regulation for the purposes of paragraph (2)(e) prescribing information that is personal information about an individual, the Minister must be satisfied that the information is reasonably necessary for monitoring compliance with Subdivisions C, E or F of this Division.
(1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.
For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision.
Subdivision F—Compliance notices for work-related breaches
Scope
This section applies if an authorised officer reasonably believes that a person has contravened a conduct rule provision (within the meaning of subsection 245AL(1) or 245AYO(1)).
Giving a compliance notice
(2) The authorised officer may give the person a notice (a compliance notice) specifying action that the person must, within such reasonable time as is specified in the notice, take or refrain from taking to address the contravention.
Note: The compliance notice may be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
The compliance notice may require the person to produce reasonable evidence of compliance with the notice.
The compliance notice must also:
set out the name of the person; and
set out the name of the authorised officer; and
set out a summary of the contravention; and
explain that a failure to comply with the notice may contravene a civil penalty provision; and
set out any other prescribed matters.
Person must comply with compliance notice
A person who is given a compliance notice must comply with the notice.
Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).
Civil penalty: 48 penalty units.
Effect of compliance with compliance notice
A person who complies with a compliance notice is not taken by that compliance to have admitted to the contravention in relation to which the notice is given.
Relationship with enforceable undertakings
An authorised officer must not give a person a compliance notice in relation to a contravention if:
the person has given an undertaking under section 245ALA in relation to the contravention; and
the undertaking has not been withdrawn.
Relationship with civil penalty provisions
The Minister must not apply for an order under subsection 486R(1) (civil penalty orders) in relation to a contravention of a provision mentioned in subsection (1) of this section by a person if:
an authorised officer has given the person a compliance notice in relation to the contravention; and
either of the following subparagraphs applies:
the notice has not been withdrawn, and the person has complied with the notice;
the person has made an application to a court for judicial review of the decision to give the notice and the application has not been completely dealt with.
In this Division, unless the contrary intention appears:
aircraft includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.
Australian aircraft means an aircraft that: (a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or is not registered under the law of a foreign country and is either wholly owned by, or solely operated by: one or more residents of Australia; or one or more Australian nationals; or one or more residents of Australia and one or more Australian nationals. For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.
(a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or
is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:
one or more residents of Australia; or
one or more Australian nationals; or
one or more residents of Australia and one or more Australian nationals.
For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.
Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the ensign or insignia prescribed for the purposes of the definition of Commonwealth aircraft in subsection 4(1) of the Customs Act 1901.
goods includes a document.
this Act includes regulations made under this Act.
Application of section
This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:
if the other aircraft is an Australian aircraft—is over anywhere except a foreign country; and
if the other aircraft is not an Australian aircraft—is over Australia.
Requesting information to identify an aircraft
If the commander cannot identify the other aircraft, the commander may:
use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed “Rules of the Air”) to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and
request the pilot of the other aircraft to disclose to the commander:
the identity of the other aircraft; and
the identity of all persons on the other aircraft; and
the flight path of the other aircraft; and
the flight plan of the other aircraft.
Requesting aircraft to land for boarding
The commander may request the pilot of the other aircraft to land it at the nearest proclaimed airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:
the pilot does not comply with a request under subsection (2); or
the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act.
Note: Section 245F gives power to board the aircraft and search it once it has landed.
Means of making request
Any reasonable means may be used to make a request under this section.
Request still made even if pilot did not receive etc. request
To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.
Pilot must comply with request
The pilot of the other aircraft must comply with a request made under this section.
Penalty: Imprisonment for 2 years.
Subsection (6) does not apply if the pilot has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
Application of section to aircraft
This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.
Officer’s powers
An officer may:
board and search the aircraft; and
search and examine any goods found on the aircraft; and
secure any goods found on the aircraft; and
require all persons found on the aircraft to answer questions, and produce any documents in their possession, in relation to the following:
the aircraft and its flight, cargo, stores, crew and passengers;
the identity and presence of those persons on the aircraft;
a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and
copy, or take extracts from, any document:
found on the aircraft; or
produced by a person found on the aircraft as required under paragraph (d); and
arrest without warrant any person found on the aircraft if the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act.
Help to search
Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the aircraft.
Help to examine goods
In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.
Examples of examining goods
Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following:
opening any package in which goods are or may be contained;
using a device, such as an X-ray machine or ion scanning equipment, on the goods;
if the goods are a document—reading the document either directly or with the use of an electronic device;
using a dog to assist in examining the goods.
Power to detain and move aircraft
An officer may detain the aircraft and bring it, or cause it to be brought, to a port, or to another place, that he or she considers appropriate if the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.
People on detained aircraft
If an officer detains an aircraft under this section, any restraint on the liberty of any person found on the aircraft that results from the detention of the aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the aircraft.
Jurisdiction of High Court
Nothing in subsection (8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
Powers of officers in respect of people found on detained aircraft
If an officer detains an aircraft under this section, the officer may:
detain any person found on the aircraft and bring the person, or cause the person to be brought, to the migration zone; or
take the person, or cause the person to be taken, to a place outside Australia.
Powers to move people
For the purpose of moving a person under subsection (9), an officer may, within or outside Australia:
place the person on a ship or aircraft; or
restrain the person on a ship or aircraft; or
remove the person from a ship or aircraft.
Protection if officers etc. act in good faith
Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10).
Use of necessary and reasonable force
An officer may use such force as is necessary and reasonable in the exercise of a power under this section.
Limit on use of force to board and search aircraft
In boarding and searching the aircraft and searching or examining goods found on the aircraft, an officer must not damage the aircraft or goods by forcing open a part of the aircraft or goods unless:
the person (if any) apparently in charge of the aircraft has been given a reasonable opportunity to open that part or the goods; or
it is not reasonably practicable to give that person such an opportunity.
This subsection has effect despite paragraphs (3)(a) and (b) and subsection (10).
Limit on use of force to arrest or detain person on aircraft
In arresting or detaining a person found on the aircraft, an officer:
must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention, or to prevent the person escaping after the arrest or detention; and
must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection has effect despite paragraph (3)(f) and subsection (10).
Limit on use of force to arrest fleeing person
In arresting a person found on the aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:
the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or
the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection applies in addition to subsection (12) and has effect despite paragraph (3)(f) and subsection (10).
Complying with requirement by officer
A person must not refuse or fail to comply with a requirement made by an officer under this section.
Penalty: 100 penalty units.
Subsection (15) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (15A) (see subsection 13.3(3) of the Criminal Code).
An offence against subsection (15) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Evidence may be used in prosecutions etc.
To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:
investigating the offence; or
proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.
Section not to limit officer’s other powers
This section does not limit the use by an officer of any other powers under this Act.
Definition of officer
(18) In this section, officer means an officer within the meaning of section 5, and includes:
any person who is in command, or a member of the crew, of the aircraft from which the relevant request under section 245E was made; and
a member of the Australian Defence Force.
Interpretation
In this section:
a reference to a person found on the aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the aircraft; and
a reference to goods found on the aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the aircraft.
For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if the person:
is on an aircraft that has been detained under subsection 245F(8); or
has been placed on a ship or aircraft under subsection 245F(9A).
Note: Division 13 of Part 2 provides search powers in respect of persons who are in immigration detention.
The purpose for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section is to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.
If, in the course of a search under this section, a weapon or other thing referred to in subsection (2) is found, an officer:
may take possession of the weapon or other thing; and
may retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.
This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).
A search under this section of a person, and the person’s clothing, must be conducted by:
an officer of the same sex as the person; or
in a case where an officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:
is requested by an officer; and
agrees;
to conduct the search.
An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (7).
An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
(8) In this section, officer has the same meaning as it has in section 245F.
In this Division:
approved fall-back reporting system means a system approved under section 245K.
approved primary reporting system means a system approved under section 245J.
approved primary reporting system for crew, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on crew on an aircraft or ship of that kind.
approved primary reporting system for passengers, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on passengers on an aircraft or ship of that kind.
arrival means:
in relation to an aircraft—the aircraft coming to a stop after landing; or
in relation to a ship—the securing of the ship for the loading or unloading of passengers, cargo or ship’s stores.
kind of aircraft or ship to which this Division applies means a kind of aircraft or ship specified in the regulations as a kind of aircraft or ship to which this Division applies.
operator of an aircraft or ship for a particular flight or voyage means:
Note: Kind has a meaning affected by subsection (2).
the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or
if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia—the pilot of the aircraft or the master of the ship.
(2) For the purposes of this Division (and of regulations and approvals made for the purposes of provisions of this Division), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:
the type, size or capacity of the aircraft or ship;
the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to or from Australia;
other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship.
The Secretary must, for each kind of aircraft or ship to which this Division applies, by legislative instrument, approve a system for the purposes of reporting under this Division. The system may be an electronic system or a system requiring reports to be provided in documentary form.
Note 1: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: It is anticipated that, ultimately, documentary systems will be phased out and all approved systems will be electronic systems.
Under subsection (1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew.
The information about passengers or crew that is to be reported by a system must be about:
if the system is for reporting on passengers—passengers individually; or
if the system is for reporting on crew—members of the crew individually; or
if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.
The instrument of approval of a system for reporting on passengers or crew must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system.
The Secretary must, by legislative instrument, approve one or more systems as fall-back reporting systems. A system may be an electronic system or a system requiring reports to be provided in documentary form.
Note: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
The information about passengers or crew that is to be reported by a system must be about:
if the system is for reporting on passengers—passengers individually; or
if the system is for reporting on crew—members of the crew individually; or
if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.
The instrument of approval of a system must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system.
Aircraft and ships to which section applies
This section applies to an aircraft or ship of a kind to which this Division applies that is due to arrive at a place in Australia from a place outside Australia.
Obligation to report on passengers and crew
The operator of the aircraft or ship must, in accordance with this section:
report to the Department, using the approved primary reporting system for passengers, on each passenger who will be on board the aircraft or ship at the time of its arrival at the place in Australia; and
report to the Department, using the approved primary reporting system for crew, on each member of the crew who will be on board the aircraft or ship at the time of its arrival at the place in Australia.
Note 1: This obligation must be complied with even if the information concerned is personal information.
Note 2: Section 245N contains an offence for failure to comply with this subsection.
Information to be reported
A report on passengers or crew under subsection (2) must include the information relating to those passengers or crew that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.
Deadline for reporting—aircraft
A report on passengers or crew on an aircraft must be given not later than:
if the flight from the last place outside Australia is likely to take not less than 3 hours—3 hours before the aircraft’s likely time of arrival at the place in Australia; or
if the flight from the last place outside Australia is likely to take less than 3 hours—one hour before the aircraft’s likely time of arrival at the place in Australia.
Deadline for reporting—ships
A report on passengers or crew on a ship must be given not later than:
the start of the prescribed period before the ship’s estimated time of arrival at the place in Australia; or
if the journey is of a kind described in regulations made for the purposes of this paragraph—the start of the shorter period specified in those regulations before the ship’s estimated time of arrival at the place in Australia.
Regulations made for the purposes of paragraph (5)(b) may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes.
Aircraft and ships to which section applies
This section applies to an aircraft or ship of a kind to which this Division applies that is due to depart from a place in Australia on a flight or voyage to a place outside Australia (whether or not after calling at other places in Australia).
Obligation to report on passengers and crew
The operator of the aircraft or ship must, in accordance with this section:
report to the Department, using the approved primary reporting system for passengers, on each passenger who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage); and
report to the Department, using the approved primary reporting system for crew, on each member of the crew who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage).
Note 1: This obligation must be complied with even if the information concerned is personal information.
Note 2: Section 245N contains an offence for failure to comply with this subsection.
However, if:
on the flight or voyage, the aircraft or ship calls at one or more places in Australia before departing to the place outside Australia; and
the regulations prescribe that a report under subsection (2) must only relate to the part of the flight or voyage that is from the last place in Australia to the place outside Australia;
then the report must be on each passenger or crew member who is on, or is expected to be on, that part of the flight or voyage.
Information to be reported
A report on a passenger or crew member under subsection (2) must include the information relating to the passenger or crew member that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.
Deadline for providing a report
A report on a passenger or crew member under subsection (2) must be provided:
if the regulations prescribe a period or periods before the aircraft’s or ship’s departure from a place for the giving of a report under subsection (2) in relation to the passenger or crew member—not later than the start of that period or each of those periods; and
if the regulations prescribe an event or events for the giving of a report under subsection (2) in relation to the passenger or crew member—at the time of that event or each of those events; and
if the regulations prescribe a time or times for the giving of a report under subsection (2) in relation to the passenger or crew member—at that time or each of those times.
To avoid doubt, more than one report may be required to be provided under subsection (2) in relation to a passenger or crew member.
Note: For example, if regulations made for the purposes of subsection (5) prescribe a period of 48 hours before the aircraft’s or ship’s departure from a place on the flight or voyage and also prescribe an event of the passenger or crew member checking-in for the flight or voyage, then 2 reports would be required to be provided under this section in relation to the passenger or crew member.
Collection of personal information
The Department may collect information (including personal identifiers) in a report provided under this Division.
Access to, and disclosure of, personal information
The following provisions:
section 336D (which authorises access to identifying information);
section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.
Effect on interpretation
This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
This section applies if:
the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system; and
either:
(i) the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew) using the approved primary reporting system because the system is not working; or
(ii) the Secretary permits the operator of the aircraft or ship to report on some or all of the passengers or crew (the relevant passengers or crew) using an approved fall-back reporting system.
Sections 245L and 245LA apply in relation to the relevant passengers or crew as if:
the reference in subsections 245L(2) and 245LA(2) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and
the reference in subsections 245L(3) and 245LA(4) to the information that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew.
An operator of an aircraft or ship who intentionally contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.
An operator of an aircraft or ship who contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.
Note: See also paragraph 504(1)(jaa) (which deals with the payment of a penalty as an alternative to prosecution).
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the crew in relation to whom the operator contravenes subsection 245L(2) or 245LA(2).
The Governor-General may, by Proclamation, appoint a place in a port to be the boarding station for that port for the purposes of this Act.
(2) Where a boarding station for a port is for the time being appointed or continued under the Customs Act 1901-1957, that boarding station shall be deemed to be appointed under this section as the boarding station for that port for the purposes of this Act.
The master of a vessel which has entered Australia from overseas shall not suffer the vessel to enter any place other than a port.
Penalty: 200 penalty units.
The master of a vessel (other than an aircraft) from overseas bound to or calling at a port:
shall, if so required by the Secretary or Australian Border Force Commissioner, bring the vessel (other than an aircraft) to for boarding under this Act at the boarding station appointed for that port; and
shall not move the vessel (other than an aircraft) from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
Subsection (2) does not apply if the master moves the vessel from the boarding station with the intention of leaving the port.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
The master of an aircraft from overseas arriving in Australia shall not suffer the aircraft to land at any other proclaimed airport until the aircraft has first landed:
at such proclaimed airport for which a boarding station is appointed as is nearest to the place at which the aircraft entered Australia; or
at such other airport for which a boarding station is appointed as has been approved by the Secretary or Australian Border Force Commissioner, in writing, as an airport at which that aircraft, or a class of aircraft in which that aircraft is included, may land on arriving in Australia from overseas.
Penalty: 200 penalty units.
The master of an aircraft which is engaged on an air service or flight from a place overseas to a place in Australia:
shall not suffer the aircraft to land at a proclaimed airport for which a boarding station is not appointed;
shall, as soon as practicable after the aircraft lands at a proclaimed airport, bring the aircraft for boarding to the boarding station appointed for that airport; and
shall not move the aircraft from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
It is a defence to a prosecution for an offence against subsection (1), (3) or (4) if the person charged proves that he or she was prevented from complying with the subsection by stress of weather or other reasonable cause.
Note: A defendant bears a legal burden in relation to the matters in subsection (5) (see Criminal Code).section 13.4 of the
An offence against any of subsections (1) to (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
While a vessel is at a boarding station, an officer may go and remain on board the vessel for the purposes of this Act.
The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding of the vessel under this section and the performance by the officer of duties for the purposes of this Act.
Penalty for any contravention of this subsection: 100 penalty units.
An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Where the Minister is satisfied that it is no longer necessary for the purposes of this Act that a provision of section 247 should continue to apply in relation to a vessel, the Minister shall, by writing under his or her hand, exempt the master of that vessel from liability to comply with that provision.
An officer may:
prevent a person whom the officer reasonably suspects to be an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; or
prevent a removee or deportee from leaving a vessel on which he or she has been placed;
and may take such action and use such force as are necessary for that purpose.
(1AA) An officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person:
is seeking to enter the migration zone; and
would, if in the migration zone, be an unlawful non-citizen.
To avoid doubt, and without limiting the generality of subsections (1) and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection (1AA) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsections (1) and (1AA) include:
requiring the vessel to travel to a port; and
requiring the person to remain on the vessel until it arrives at the port.
The master of a vessel may, in relation to persons on board the vessel, do all things which an officer is, under subsections (1) and (1AA), authorized to do.
In this section:
suspect means a non-citizen who:
travelled, or was brought, to the migration zone; and
is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.
For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect.
A non-citizen detained because of subsection (2) may be kept in immigration detention for:
such period as is required for:
the making of a decision whether to prosecute the suspect in connection with the offence concerned; or
instituting such a prosecution; and
if such a prosecution is instituted within that period—such further period as is required for the purposes of the prosecution.
Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for:
any proceedings in connection with the prosecution; and
the serving of any custodial sentence imposed because of the prosecution; and
the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.
If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she:
must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and
may, at the direction of an authorised officer, continue to be detained under section 189 until so removed.
An officer may at any time board and search a vessel if the officer reasonably suspects there is on board the vessel:
an unlawful non-citizen; or
a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non-citizen.
The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding and searching of the vessel by the officer under subsection (1).
Penalty: 100 penalty units.
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
A reference in subsection (1) or (2) to a vessel includes a reference to an Australian resources installation and to an Australian sea installation.
The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form.
A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and ceases to be in force at the expiration of the specified period.
An officer having with him or her a search warrant issued to him or her under this section and remaining in force may, at any time in the day or night with such assistance as the officer thinks necessary, enter and search any building, premises, vessel, vehicle or place in which the officer has reasonable cause to believe there may be found:
an unlawful non-citizen, a removee or a deportee;
a person to whom a temporary visa has been issued subject to a condition with respect to the work that is to be performed by that person;
any document, book or paper relating to the entry or proposed entry into Australia of a person in circumstances in which that person:
(i) would have become a prohibited immigrant within the meaning of this Act as in force from time to time before the commencement of the Migration Amendment Act 1983; or
(ii) would have become a prohibited non-citizen within the meaning of this Act as in force from time to time after the commencement of the Migration Amendment Act 1983 but before the commencement of section 4 of the Migration Legislation Amendment Act 1989; or
(iii) would have been an illegal entrant within the meaning of the Act as in force from time to time after the commencement of Migration Legislation Amendment Act 1989 but before 1 September 1994; orsection 4 of the
would have become, or would become, an unlawful non-citizen; or
any passport or document of identity of, or any ticket for the conveyance from a place within Australia to a place outside Australia of an unlawful non-citizen, a removee or a deportee;
and may seize any such document, book, paper, passport, document of identity or ticket, as the case may be, and impound and detain it for such time as the officer thinks necessary.
For the purposes of the exercise of his or her powers under this section an officer may stop any vessel or vehicle.
An officer may use such reasonable force as is necessary for the exercise of his or her powers under this section.
(1) A thing is a prohibited thing in relation to a person in detention (whether or not the person is detained in an immigration detention facility), or in relation to an immigration detention facility, if:
both:
possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located; and
the thing is determined under paragraph (2)(a); or
the thing is determined under paragraph (2)(b).
Example 1: A thing may be a prohibited thing in relation to an immigration detention facility for the purposes of a search of such a facility under section 252BA and the seizure of prohibited things in the course of such a search under section 252C or 252CA.
Example 2: A mobile phone may, if determined under paragraph (2)(b), be a prohibited thing in relation to a person in detention even if the person is not detained in an immigration detention facility.
The Minister may, by legislative instrument, determine a thing for the purposes of subsection (1) if the Minister is satisfied that:
possession of the thing is prohibited by law in a place or places in Australia; or
(b) possession or use of the thing in an immigration detention facility might be a risk (an immigration detention facility risk) to the health, safety or security of persons in the facility, or to the order of the facility.
Examples: The following things may be determined to be prohibited things if the Minister is satisfied that they pose a risk mentioned in paragraph (b):
mobile phones;
SIM cards;
computers and other electronic devices designed to be capable of being connected to the internet.
(3) However, if a medication or health care supplement is determined under paragraph (2)(b), the medication or supplement is not a prohibited thing in relation to a particular person detained in an immigration detention facility if the medication or supplement has been prescribed or supplied for the person’s individual use by a health service provider authorised for the purpose by the person in charge of the facility.
(4) Despite any regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 of that Act (disallowance of legislative instruments) applies to a legislative instrument made under subsection (2) of this section.
(5) An immigration detention facility is:
a detention centre established under this Act (see section 273); or
(b) another place approved by the Minister in writing for the purposes of subparagraph (b)(v) of the definition of immigration detention in subsection 5(1).
Purpose and belief relating to immigration detention facility risks
The exercise of a power covered by subsection (7) is authorised only if the purpose of exercising the power is to prevent or lessen an immigration detention facility risk.
The exercise by a person of a power covered by paragraph (7)(b) is authorised only if the person believes on reasonable grounds that exercising the power is necessary to prevent or lessen an immigration detention facility risk.
The exercise by a person of a power covered by paragraph (7)(c) or (d) to seize or request a thing, on the basis that the thing is a prohibited thing determined under paragraph 251A(2)(b), is authorised only if the person believes on reasonable grounds that:
the thing is such a prohibited thing; and
exercising the power is necessary to prevent or lessen an immigration detention facility risk.
Temporary return of seized things
If a prohibited thing determined under paragraph 251A(2)(b) has been seized under a power covered by paragraph (7)(c) of this section, the person who owns the thing, or who last controlled it before its seizure, may make a request to an authorised officer for its return for a particular period.
On a request by a person under subsection (4), an authorised officer must:
return the thing to the person for the period requested; or
if the authorised officer believes on reasonable grounds that it is necessary to do so to prevent or lessen an immigration detention facility risk:
return the thing to the person for a specified period shorter than that requested; or
refuse to return the thing to the person.
Note: The return of a thing under this subsection for a period does not prevent the further exercise of a power covered by subsection (7) in relation to the thing during that period, subject to this section (see subsection (9)).
Return of seized things if no longer necessary for them to be retained
(6) If a prohibited thing determined under paragraph 251A(2)(b) has been seized under a power covered by paragraph (7)(c) of this section, an authorised officer must take all reasonable steps to return the thing to the person who owns the thing, or last controlled it before its seizure, if the officer no longer believes, on reasonable grounds, that it is necessary to retain the thing to prevent or lessen an immigration detention facility risk.
Note 1: For the return or forfeiture of such prohibited things when the owner or controller ceases to be in detention, see subsections 252(4A), (4D) and (4E) and section 252CB.
Note 2: The return of a thing as a result of this subsection does not prevent the further exercise of a power covered by subsection (7) in relation to the thing, subject to this section (see subsection (9)).
Powers covered
This subsection covers the following powers:
the power of the Minister to make a direction under subsection 251B(6) in relation to the seizure of a prohibited thing determined under paragraph 251A(2)(b);
the power of an authorised officer, or an authorised officer’s assistant, to conduct a search or a screening procedure in relation to any prohibited thing determined under paragraph 251A(2)(b), under the following provisions:
section 252 (searches of detainees etc.—general powers of personal search and seizure);
section 252AA (searches of detainees—screening procedures);
section 252A (searches of detainees—strip searches);
section 252BA (searches of certain immigration detention facilities—general);
section 252BB (searches of certain immigration detention facilities—authorised officers’ assistants);
the power of an authorised officer to seize a prohibited thing determined under paragraph 251A(2)(b), under the following provisions:
paragraph 252(4A)(a) (seizure during searches under section 252);
subsection 252CA(2) (seizure during screening and strip searches of detainees and searches of facilities);
the following powers of an authorised officer, in relation to an immigration detention facility:
the power, under paragraph 252G(4)(e), to request that a person leave a prohibited thing determined under paragraph 251A(2)(b) in a specified place;
the power, under subsection 252G(7), to refuse entry to the facility to a person who does not comply with such a request.
In this section, a reference to the exercise of a power under a provision of this Act includes a reference to:
the exercise of any particular aspect of the power under any particular part of that provision, and of any related power (or any particular aspect of such a related power); and
the exercise of the power (or a related power mentioned in paragraph (a)) in any particular way.
Example: A reference in this section to the exercise of a power of the Minister to make a direction under subsection 251B(6) in relation to a prohibited thing determined under paragraph 251A(2)(b) includes a reference to the exercise of that power by the Minister in relation to the following, as specified in the direction:
any particular relevant seizure power (or all such powers);
any particular class of persons, things or immigration detention facilities (or all such persons, things or facilities);
any particular circumstances.
To avoid doubt, but subject to this section:
the return of a thing to a person under subsection (5) for a period does not prevent the further exercise of a power covered by subsection (7) in relation to the thing during that period; and
the return of a thing to a person after taking all reasonable steps under subsection (6) for its return does not prevent the further exercise of a power covered by subsection (7) in relation to the thing.
Without limiting the Secretary must ensure that a detainee who is detained in an immigration detention facility is given access to an alternative means of communication, which meets the requirements under subsection (2) of this section, if:section 256 (person in immigration detention may have access to certain advice, facilities etc.),
a prohibited thing determined under paragraph 251A(2)(b) has been seized from the detainee under:
paragraph 252(4A)(a) (seizure during personal searches under section 252); or
subsection 252CA(2) (seizure during screening, strip search or facility search); and
the thing is a device that a person may use to communicate with another person; and
the thing has not been returned to the detainee.
The alternative means of communication must be reasonably sufficient to enable the detainee to:
communicate with a member of the family unit of the detainee; or
communicate with any person outside the immigration detention facility for the purposes of:
obtaining legal advice; or
obtaining support of a prescribed kind; or
communicating governmental or political matters.
Each of the following powers may not be exercised to the extent (if any) that the exercise of the power would infringe any constitutional doctrine of implied freedom of political communication:
the power under subsection 251A(2) (power to determine prohibited things);
a power covered by subsection 251AA(7) (powers relating to certain prohibited things).
Visibility or intentional concealment of things—search etc. powers
An authorised officer may exercise a power to search for a thing under section 252 or 252BA:
whether or not the thing is visible to the authorised officer:
in the case of a search under section 252—immediately before the start of the search; or
in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and
if the thing is not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.
Note: Section 252 covers searches of detainees and certain non-citizens. Section 252BA covers searches of immigration detention facilities.
An authorised officer may conduct a screening procedure for a thing under section 252AA, or a strip search for a thing under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.
Note: Section 252AA covers screening procedures for detainees. Section 252A covers strip searches of detainees. These sections authorise searches for things which are not visible immediately before the procedure or search starts to be conducted.
Visibility or intentional concealment of things—seizure powers
An authorised officer may seize a thing under section 252 in the course of a search under that section, or under section 252C or 252CA in the course of a search under section 252BA:
whether or not the thing was visible to the authorised officer:
in the case of a search under section 252—immediately before the start of the search; or
in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and
if the thing was not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.
An authorised officer may seize a thing under section 252C or 252CA, in the course of the conduct of a screening procedure under section 252AA or of a strip search under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.
Powers do not limit each other
A power may be exercised under any of sections 252, 252AA, 252A, 252BA, 252C and 252CA in relation to a person, immigration detention facility or thing irrespective of whether any powers are exercised in relation to the person, immigration detention facility or thing under another of those sections.
Directions requiring seizure powers to be exercised
The Minister may, by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more of the following:
a person in a specified class of persons, or all persons, to whom the relevant seizure power relates;
Example: All detainees in a specified immigration detention facility, or all detainees in such a facility other than those who are unauthorised maritime arrivals.
a specified thing, a thing in a specified class of things, or all things, to which the relevant seizure power relates;
a specified immigration detention facility, an immigration detention facility in a specified class of such facilities, or all immigration detention facilities;
any circumstances specified in the directions.
Example: A direction could specify a particular period during which the direction is to take effect, or the duration of a specified event.
Note 1: The Minister may give a direction under subsection (6) only to prevent or lessen an immigration detention facility risk: see subsection 251AA(1).
Note 2: Despite any direction given under subsection (6), a thing cannot be seized if the seizure is not authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
(7) A relevant seizure power is a power to seize a thing under any of the following provisions:
paragraph 252(4)(a) or (4A)(a) (searches of detainees etc.—general powers of personal search and seizure);
subsection 252C(1) (screening and strip searches of detainees and searches of facilities—seizure (general));
subsection 252CA(2) (screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things).
Subsection (6) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
Scope
This section applies in relation to the following persons:
a detainee;
a person who is a non-citizen, if:
the person has not been immigration cleared; and
an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa; and
the person is not in detention.
Powers of authorised officers
An authorised officer may, without warrant, search a person, the person’s clothing and any property under the immediate control of the person for any thing that may be seized from the person under paragraph (4)(a) or (4A)(a), whether or not the officer has any suspicion that the person has such a thing on the person’s body, in the person’s clothing or in any such property.
An authorised officer may detain a person for the purpose of searching the person in accordance with this section.
Seizure
Subject to subsection (4C), an authorised officer:
may, in the course of a search under this section, seize any of the following:
(i) a weapon or other thing capable of being used to inflict bodily injury or to help any detainee to escape from immigration detention (a weapon or escape aid);
(ii) a document or other thing that is, or may be, evidence for grounds for cancelling the visa of the person who is being searched (visa cancellation evidence in relation to the person);
a prohibited thing determined under paragraph 251A(2)(a) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence); and
may retain the thing for such time as the authorised officer thinks necessary for the purposes of this Act.
Note 1: Paragraph 251A(2)(a) covers things the possession of which is unlawful.
Note 2: Subparagraph (a)(iii) of this subsection does not apply in relation to certain detainees and non-citizens (see subsection (4B)).
Subject to subsection (4C), an authorised officer:
may, in the course of a search under this section, seize a prohibited thing determined under paragraph 251A(2)(b) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence); and
must, if it appears that the prohibited thing is owned or was controlled by a detainee, take all reasonable steps, when that detainee ceases to be in detention, to return it to that detainee; and
must, if it appears that the prohibited thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to that person.
Note 1: Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.
Note 2: Paragraph (a) of this subsection does not apply in relation to certain detainees and non-citizens (see subsection (4B)).
Note 3: A prohibited thing that is seized under paragraph (a) of this subsection may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
The seizure of a prohibited thing under subparagraph (4)(a)(iii) or paragraph (4A)(a) is not authorised if the seizure is from:
a detainee covered by a residence determination who is residing at the place specified in the determination; or
a non-citizen covered by paragraph (1)(b).
Note: However, if a prohibited thing is also a weapon or escape aid, or visa cancellation evidence, it can be seized from such a person under subparagraph (4)(a)(i) or (ii).
If an authorised officer has the power to seize a thing under paragraph (4)(a) or (4A)(a), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.
Note 1: An authorised officer does not have the power to seize a prohibited thing under paragraph (4)(a) or (4A)(a) if subsection (4B) applies in relation to the thing.
Note 2: An authorised officer has the power to seize a prohibited thing under paragraph (4A)(a) only if the exercise of the power is authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
Forfeiture of seized things
A prohibited thing seized under paragraph (4A)(a) is forfeited to the Commonwealth if the authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing under paragraph (4A)(b) or (c), that:
its owner or the person who last controlled the thing cannot be identified; or
the thing is abandoned; or
if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to that detainee when that detainee ceases to be in detention; or
if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to that person.
If a prohibited thing is forfeited under subsection (4D), the authorised officer may dispose of it in any way the officer thinks appropriate.
Related matters
This section does not authorise an authorised officer, or another person conducting a search pursuant to subsection (6) to remove any of the person’s clothing, or to require a person to remove any of his or her clothing.
A search under this section of a person, and the person’s clothing, shall be conducted by:
an authorised officer of the same sex as the person; or
in a case where an authorised officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:
is requested by an authorised officer; and
agrees;
to conduct the search.
An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (8).
An authorised officer or other person who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
An authorised officer may, without warrant, conduct a screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession:
a weapon or escape aid;
a prohibited thing.
An authorised officer may conduct a screening procedure under subsection (1) in relation to a detainee for a thing mentioned in that subsection whether or not the officer has any suspicion that the detainee has such a thing on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession.
An authorised officer who conducts a screening procedure under this section must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.
This section does not authorise an authorised officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.
In this section:
conducting a screening procedure, in relation to a detainee, means:
causing the detainee to walk, or to be moved, through screening equipment; or
passing hand-held screening equipment over or around the detainee or around things in the detainee’s possession; or
passing things in the detainee’s possession through screening equipment or examining such things by X-ray.
screening equipment means a metal detector or similar device for detecting objects or particular substances.
An authorised officer may, without warrant, conduct a strip search of a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing, or in a thing in the detainee’s possession:
a weapon or escape aid;
a prohibited thing.
Note: Section 252B sets out rules for conducting a strip search under this section.
(2) A strip search of a detainee means a search of the detainee’s body or clothing or of a thing in the detainee’s possession. It may include:
requiring the detainee to remove some or all of the detainee’s clothing; and
an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities).
A strip search of a detainee may be conducted by an authorised officer only if:
an officer suspects on reasonable grounds that there is on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:
a weapon or escape aid;
a prohibited thing; and
the officer referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and
the strip search is authorised as follows:
if the detainee is at least 18—the Secretary or Australian Border Force Commissioner, or an SES Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions;
if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions.
An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:
a search conducted under section 252 (whether by that officer or another officer); or
a screening procedure conducted under section 252AA (whether by that officer or another officer); or
any other information that is available to the officer.
An authorisation of a strip search given for the purposes of paragraph (3)(c):
may be given by telephone, fax or other electronic means; and
must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.
The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person.
A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
The magistrate need not accept the power conferred.
A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
In this section:
business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given.
SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.
A strip search of a detainee under section 252A:
must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and
must be conducted in a private area; and
must be conducted by an authorised officer of the same sex as the detainee; and
subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and
subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and
must not be conducted on a detainee who is under 10; and
if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs—must be conducted in the presence of:
the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or
if that is not acceptable to the detainee or subparagraph (i) does not apply—another person (other than an authorised officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and
subject to subsection (4), if the detainee is at least 18, and is not incapable of managing his or her affairs—must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and
must not involve a search of the detainee’s body cavities; and
must not involve the removal of more items of clothing, or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is on the detainee, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:
a weapon or escape aid;
a prohibited thing; and
must not be conducted with greater force than is reasonably necessary to conduct the strip search.
Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present.
Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search.
Neither:
a detainee’s refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor
a detainee’s inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time;
prevents a strip search being conducted.
A strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless:
the person is a medical practitioner; and
a medical practitioner of the same sex as the detainee is not available within a reasonable time.
An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section.
A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is:
damaged or destroyed; or
seized under section 252C or 252CA.
Search
An authorised officer may, without warrant, conduct a search of an immigration detention facility operated by or on behalf of the Commonwealth, including, without limitation, a search covering any or all of the following:
accommodation areas;
administrative areas;
common areas;
detainees’ personal effects;
detainees’ rooms;
medical examination areas;
storage areas.
An authorised officer may conduct a search of the facility for any of the following things:
a weapon or escape aid;
a prohibited thing.
An authorised officer may search the facility for a thing under subsection (2) whether or not the officer has any suspicion that there is such a thing at the facility.
Note: See also sections 252C and 252CA in relation to the seizure of things in the course of a search under this section.
Conduct of search
Without limiting subsections (1) and (2), an authorised officer may use a dog in conducting a search under this section.
If an authorised officer uses a dog in conducting a search under this section, the officer must:
take all reasonable precautions to prevent the dog touching any person (other than the officer); and
keep the dog under control while conducting the search.
If an authorised officer uses a dog in accordance with subsection (5) in conducting a search under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).
An authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
Authorised officers may be assisted by other persons
(1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting a search under assistant.section 252BA (other than under subsection 252BA(4)), or under section 252C, 252CA or 252CB in relation to such a search, if that assistance is necessary and reasonable. A person giving such assistance is the authorised officer’s
Note: Subsection 252BA(4) provides for an authorised officer to use a dog to conduct a search of an immigration detention facility. Sections 252C, 252CA and 252CB deal with the seizure of things in the course of a search under section 252BA and their return in certain circumstances.
Powers of an authorised officer’s assistant
In connection with a search of an immigration detention facility under section 252BA, an authorised officer’s assistant:
may enter the facility; and
may exercise any of the same powers, and perform any of the same functions and duties, as are conferred on the authorised officer in relation to the search under that section (other than under subsection 252BA(4)) and sections 252C, 252CA and 252CB; and
must do so in accordance with any directions given to the assistant by the authorised officer.
A power exercised by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.
A function or duty performed by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.
Section 251B applies in relation to the exercise of a power, or the performance of a function or duty, by an authorised officer’s assistant in the same way as it applies in relation to such an exercise or performance by the authorised officer.
If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.
Seizure
Subject to subsection (2), in the course of the conduct of a screening procedure under section 252AA, or of a search under section 252A or 252BA, an authorised officer may seize a thing that:
is a weapon or escape aid; or
is a prohibited thing determined under paragraph 251A(2)(a); or
is forfeitable to the Commonwealth (otherwise than under subsection (2A)); or
in any other case—might provide evidence of the commission of an offence against this Act.
Note 1: Section 252AA deals with screening detainees, section 252A deals with strip searches of detainees and section 252BA deals with searches of certain immigration detention facilities.
Note 2: Paragraph 251A(2)(a) covers things the possession of which is unlawful.
If an authorised officer has the power to seize a thing under subsection (1), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.
Forfeiture of seized things
The following things are forfeited to the Commonwealth if seized under subsection (1):
a weapon or escape aid;
a prohibited thing determined under paragraph 251A(2)(a).
(3) An authorised officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the authorised officer must, as soon as practicable, give the thing to a constable (within the meaning of the Crimes Act 1914).
Return of seized things
Section 252CB applies to any thing seized under paragraph (1)(d) after the earliest of the following events happens:
the end of the period of 60 days after the thing was seized, or at the end of a longer period ordered by a magistrate under section 252E, unless proceedings mentioned in paragraph (b) of this subsection are instituted before the end of that period (or that longer period);
proceedings in respect of which the thing might provide evidence (including any appeal to a court in relation to those proceedings) are completed;
it is decided that the thing is not to be used in evidence.
Note: Section 252CB provides for the return of things seized under paragraph (1)(d) of this section and section 252CA.
Despite subsection (4), section 252CB does not apply to a thing if an authorised officer is authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory), otherwise than under this section, to retain, destroy or dispose of the thing.
Scope—certain prohibited things
This section applies in relation to a prohibited thing determined under paragraph 251A(2)(b), unless subsection 252C(1) applies in relation to the prohibited thing.
Note 1: Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.
Note 2: For the seizure of other things obtained by screening detainees, by a strip search of detainees or by a search of certain immigration detention facilities, see section 252C.
Seizure
Subject to subsection (4), in the course of the conduct of a screening procedure under section 252AA, or of a search under section 252A or 252BA, an authorised officer may seize a thing to which this section applies.
However, subsection (2) does not authorise the seizure of a medication or health care supplement in the course of a search under section 252BA if there are reasonable grounds for an authorised officer conducting the search to consider that:
the medication or supplement is possessed or controlled by a particular detainee; and
the medication or supplement is not a prohibited thing in relation to the particular detainee because of subsection 251A(3).
Note: Section 252BA deals with searches of certain immigration detention facilities. Subsection 251A(3) deals with medications and health care supplements that are prescribed or supplied for a person’s individual use.
If an authorised officer has the power to seize a thing under subsection (2), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.
Note 1: An authorised officer does not have the power to seize a medication or health care supplement under subsection (2) if subsection (3) applies in relation to the medication or supplement.
Note 2: An authorised officer has the power to seize a prohibited thing under subsection (2) only if the exercise of the power is authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
Note 3: A prohibited thing that is seized under subsection (2) may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
Return of seized things
Section 252CB applies to a thing that is seized under subsection (2) of this section.
Note: Section 252CB provides for the return of things seized under this section and of certain things seized under section 252C.
Reasonable steps to return seized things
If this section applies, because of subsection 252C(4) or 252CA(5), in relation to a thing that has been seized under paragraph 252C(1)(d) or subsection 252CA(2), an authorised officer:
must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when that detainee ceases to be in detention; and
must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.
Note 1: This section applies to a thing seized under paragraph 252C(1)(d) because it might provide evidence of the commission of an offence under this Act. This section also applies to a prohibited thing determined under paragraph 251A(2)(b) that is seized under subsection 252CA(2).
Note 2: A prohibited thing that is seized under subsection 252CA(2) may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
Forfeiture and disposal of seized things if they cannot be returned
However, the thing is forfeited to the Commonwealth if, after taking all reasonable steps to return it under paragraph (1)(a) or (b) of this section, the authorised officer considers on reasonable grounds that:
its owner or the person who last controlled the thing cannot be identified; or
the thing is abandoned; or
if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when the detainee ceases to be in detention; or
if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to the person.
If a prohibited thing is forfeited under subsection (2), the authorised officer may dispose of it in any way the officer thinks appropriate.
This section applies if an authorised officer seized a thing under paragraph 252C(1)(d) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:
60 days after the authorised officer seizes the thing; or
a period previously specified in an order of a magistrate under section 252E.
The authorised officer may apply to a magistrate for an order that the officer may retain the thing for a further period.
Before making the application, the authorised officer must:
take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and
if it is practicable to do so, notify each person who the authorised officer believes to be such a person of the proposed application.
The magistrate may order that the authorised officer who made an application under section 252D may retain the thing if the magistrate is satisfied that it is necessary for the authorised officer to do so:
for the purposes of an investigation as to whether an offence has been committed; or
to enable evidence of an offence to be secured for the purposes of a prosecution.
The order must specify the period for which the authorised officer may retain the thing.
A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
The magistrate need not accept the power conferred.
A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
This section applies to a detainee if:
he or she is held in immigration detention in a prison or remand centre of a State or Territory; and
a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.
To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth.
Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies.
An officer may request that a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth do one or more of the following:
walk through screening equipment;
allow an officer to pass hand-held screening equipment over or around the person or around things in the person’s possession;
allow things in the person’s possession to pass through screening equipment or to be examined by X-ray.
An officer may make a request to a person under subsection (1) whether or not, before making the request, the officer has any suspicion that there is in the person’s possession a thing mentioned in subsection (3).
(2) Screening equipment means a metal detector or similar device for detecting objects or particular substances.
An authorised officer may request that a person do something under subsection (4) if the person is about to enter an immigration detention facility operated by or on behalf of the Commonwealth, and the officer suspects on reasonable grounds that there is in the person’s possession:
a thing that:
might endanger the safety of the detainees, staff or other persons at the facility; or
might disrupt the order or security arrangements at the facility; or
a prohibited thing.
A request may be made under subsection (4) that a person do something whether or not a request is also made under subsection (1) that the person do something.
An authorised officer may request that the person do one or more of the following:
allow the authorised officer to inspect the things in the person’s possession;
remove some or all of the person’s outer clothing such as a coat, jacket or similar item;
remove items from the pockets of the person’s clothing;
open a thing in the person’s possession, or remove the thing’s contents, to allow the authorised officer to inspect the thing or its contents;
leave a thing in the person’s possession, or some or all of its contents, in a place specified by the authorised officer, if the officer suspects on reasonable grounds that the thing or anything in its contents:
might endanger the safety of the detainees, staff or other persons at the immigration detention facility; or
might disrupt the order or security arrangements at the facility; or
is a prohibited thing.
Subject to subsections (6) and (6A), a person who leaves a thing (including any of its contents) in a place specified by an authorised officer is entitled to its return when the person leaves the immigration detention facility.
If possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth law or in the State or Territory in which the immigration detention facility is located:
the thing or the contents must not be returned to the person; and
(b) an authorised officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914).
If a person leaves a prohibited thing determined under paragraph 251A(2)(b) in a place as mentioned in subsection (5) of this section, it is forfeited to the Commonwealth if an authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing to the person for the purposes of subsection (5), that:
its owner or a person who controls the thing cannot be identified; or
the thing is abandoned; or
the thing otherwise cannot be returned to the person.
Note: Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.
If a prohibited thing is forfeited under subsection (6A), the authorised officer may dispose of it in any way the officer thinks appropriate.
A person who is about to enter an immigration detention facility may be refused entry if he or she does not comply with a request under this section.
Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).
Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.
(4) If a person detained under this section (in this subsection called the detained person) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall:
if that last-mentioned person is an officer—ask the detained person; or
in any other case—cause an officer to ask the detained person;
to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period.
If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released.
Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly.
Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly.
A deportee may be kept in immigration detention or such detention as the Minister, Secretary or Australian Border Force Commissioner directs:
pending deportation, until he or she is placed on board a vessel for deportation;
at any port or place in Australia at which the vessel calls after he or she has been placed on board; or
on board the vessel until its departure from its last port or place of call in Australia.
In spite of anything else in this section, the Minister, Secretary or Australian Border Force Commissioner may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.
An officer may, without warrant, detain a person who:
has been released from detention under subsection (9) subject to conditions; and
has breached any of those conditions.
Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.
This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.
The Secretary or Australian Border Force Commissioner may give the person written notice:
if the person is a deportee:
stating that a deportation order has been made; and
setting out particulars of the deportation order; and
if the person is a removee—stating that the person is to be removed; and
(c) in any case—stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the custody transfer time), the person will be kept in immigration detention.
If a removee is given notice under subsection (2):
the authority who has custody of the removee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of Division 7 of Part 2 in relation to the removee; and
the removee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by that Division.
If a deportee is given notice under subsection (2):
the authority who has custody of the deportee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of subsection 253(1) in relation to the deportee; and
the deportee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by subsection 253(1); and
subsection 253(3) does not apply in relation to the deportee.
The Minister may appoint as a prescribed authority for the purposes of section 253 a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory or a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years’ standing.
The Governor-General may arrange with the Governor-in-Council of a State for the performance by persons who hold office as Police, Stipendiary or Special Magistrates in that State of the functions of a prescribed authority under section 253.
(3) Notice of an arrangement under subsection (2) shall be published in the Gazette.
Where an arrangement under subsection (2) is in force, a person who holds an office specified in the arrangement is a prescribed authority for the purposes of section 253.
A person who holds office as a Police, Stipendiary or Special Magistrate of a Territory is a prescribed authority for the purposes of section 253.
A prescribed authority shall make a thorough investigation of the matter which he or she is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
For the purpose of determining whether a person who is in immigration detention under this Act is an unlawful non-citizen, a removee or a deportee, an officer may put to that person such questions as the officer considers necessary and may move that person from place to place.
Where an officer puts a question to a person in accordance with subsection (1) after having informed that person that he or she is required to answer the question, that person shall not:
refuse or fail to answer the question; or
in answer to the question, make a statement which is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Where subsection (2) is applicable in relation to a question put to a person, that person is not excused from answering the question on the ground that the answer might tend to incriminate him or her, but the answer to the question shall not be used as evidence against that person in any proceedings other than proceedings under that subsection.
Subject to subsection (3), the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of this Act or the regulations.
Without limiting subsection (1), the purposes referred to in that subsection include any of the purposes referred to in subsection 5A(3).
Only citizens entering Australia etc. may be required to provide personal identifiers
If the Minister or officer knows or reasonably believes that a person is a citizen, the person must not be required to provide one or more personal identifiers under subsection (1) unless section 166, 170 or 175 applies in relation to the person.
When requirement under subsection (1) must be made
The Minister or an officer must require a person to provide one or more personal identifiers under subsection (1) if prescribed circumstances exist.
How personal identifiers must be provided
If a person is required to provide one or more personal identifiers under subsection (1), those personal identifiers must be:
provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or
if another way is specified by the Minister or officer—provided in that specified way.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
If paragraph (5)(b) applies, the person must comply with any requirements specified by the Minister or officer in providing one or more personal identifiers in the way specified under that paragraph.
Multiple requirements for personal identifiers may be made
A person may be required to provide one or more personal identifiers under subsection (1):
more than once; and
whether or not the person has previously complied with a requirement under this Act or the regulations to provide one or more personal identifiers.
Other provisions not limited or otherwise affected
This section does not limit, or otherwise affect, any other provision of this Act under which a personal identifier may be required, provided or presented.
The Minister may determine, by legislative instrument, that:
a specified person, or a person included in a specified class of persons, must not be required to provide under section 257A:
any personal identifiers; or
one or more specified kinds of personal identifiers; or
a specified person, or a person included in a specified class of persons, must not be required in specified circumstances to provide under section 257A:
any personal identifiers; or
one or more specified kinds of personal identifiers.
A person must not be required to provide a personal identifier under section 257A if:
the person is in immigration detention (but not only because he or she is detained for questioning detention (see section 192)); and
the person has, during that detention, provided a personal identifier of that type under Division 13AA.
Before an authorised officer carries out an identification test on a person for the purposes of section 257A, the authorised officer must inform the person of such matters as are prescribed.
(2) For the purposes of subsection (1), the authorised officer informs the person of a matter if the authorised officer informs the person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the person is able to communicate with reasonable fluency.
The authorised officer may comply with this section by giving to the person, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the person is able to communicate with reasonable fluency.
The regulations may prescribe the manner in which an identification test is to be carried out on a person under section 257A.
The regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under section 257A by the person otherwise than by way of an identification test.
An identification test that an authorised officer carries out under section 257A:
must be carried out in circumstances affording reasonable privacy to the person; and
must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or required or permitted by another provision of this Act; and
must not involve the removal of more clothing than is necessary for carrying out the test; and
must not involve more visual inspection than is necessary for carrying out the test.
For the purposes of this Act, a requirement to provide a personal identifier, or the provision of a personal identifier, in a particular way under section 257A is not of itself taken:
to be cruel, inhuman or degrading; or
to be a failure to treat a person with humanity and with respect for human dignity.
However, nothing in this Act authorises the Minister or an officer to require a person to provide a personal identifier under section 257A in a cruel, inhuman or degrading way, or in a way that fails to treat the person with humanity and with respect for human dignity.
An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help.
The Secretary or Australian Border Force Commissioner may, by notice in writing to the master of a vessel which has arrived in Australia not more than one month before the date of the notice, order that the vessel remain at a port or place for a reasonable time specified in the notice for the purpose of enabling a search of the vessel to be made in order to ascertain whether there are on the vessel any unlawful non-citizens or any persons seeking to enter Australia in circumstances in which they would become unlawful non-citizens.
The master of a vessel in respect of which an order is in force under this section shall not, during the time specified in the order, move the vessel without the consent of the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
The Secretary or Australian Border Force Commissioner may, in writing, direct an officer to detain a vessel where, in the Secretary’s or Australian Border Force Commissioner’s opinion, the master, owner, agent or charterer of the vessel has been guilty of an offence against this Act.
Where a direction is given under subsection (1):
the officer specified in the direction may detain the vessel at the place where it is found or cause it to be brought to another place specified by the Secretary or Australian Border Force Commissioner and detain it at that place; and
the Secretary or Australian Border Force Commissioner shall forthwith give notice of the detention to the master, owner, charterer or agent of the vessel.
(3) For the purposes of the detention and other lawful dealings with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Customs Act 1901 or other aid as may be obtained under a law of the Commonwealth with respect to the seizure of vessels or goods.Division 1 of Part XII of the
The detention of a vessel under this section shall cease if a bond with 2 sufficient sureties to the satisfaction of the Secretary or Australian Border Force Commissioner is given by the master, owner, agent or charterer of the vessel for the payment of any penalties that may be imposed in respect of the alleged offence.
(5) If, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or charterer of the vessel, the Secretary or Australian Border Force Commissioner may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the Customs Act 1901, and the vessel shall be sold.
The proceeds of the sale shall be applied firstly in payment of the penalties referred to in subsection (5) and of all costs awarded in connexion with the proceedings in which the penalties were imposed or incurred in and about the sale and the proceedings leading to the sale, and the balance shall be payable to the owner and other persons having interests in the vessel before the condemnation and sale.
Division 13A does not limit the operation of this section.
If a non-citizen who enters Australia:
is required to comply with section 166 (immigration clearance); and
either:
does not comply; or
on complying, is detained under section 189;
the Secretary or Australian Border Force Commissioner may, in writing, direct an officer to seize the vessel on which the non-citizen came to Australia.
If:
a vessel is seized under subsection (1) or section 261B; and
the vessel has not been forfeited and condemned under section 260 or condemned as forfeited under Division 13A; and
the vessel has not been ordered by a court to be delivered to a person or otherwise dealt with; and
the Secretary or Australian Border Force Commissioner is satisfied that the vessel is in such a poor condition that its custody or maintenance involves expense out of proportion to its value; and
a person other than the Commonwealth does not meet, or make arrangements that the Secretary or Australian Border Force Commissioner considers are satisfactory to meet, that expense;
the Secretary or Australian Border Force Commissioner may in writing, direct an officer to sell, destroy or otherwise dispose of the vessel.
The officer must comply with the direction.
The proceeds of a sale are to be applied firstly in payment of costs incurred by the Commonwealth in the custody or maintenance of the vessel, and in selling or disposing of the vessel, and, subject to subsection (5), the balance is to be paid to the owner and any other persons with interests in the vessel before its sale.
If:
a person owes a debt to the Commonwealth under this Act; and
(b) an amount by way of the balance of the proceeds of a sale (the balance amount) is payable to the person under subsection (4);
the Commonwealth may apply the balance amount in payment of the debt, and the debt is reduced accordingly. The amount applied must not exceed the amount of the debt.
Division 13A does not limit the operation of this section.
Subdivision A—Provision of personal identifiers
A non-citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers.
An authorised officer must not require, for the purposes of subsection (1), a person to provide a personal identifier other than any of the following (including any of the following in digital form):
fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
a measurement of the person’s height and weight;
a photograph or other image of the person’s face;
the person’s signature;
any other personal identifier of a type prescribed for the purposes of this paragraph.
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
The one or more personal identifiers are to be provided by way of one or more identification tests carried out by the authorised officer in accordance with this Division.
Note: Subject to certain restrictions, section 261AE allows reasonable force to be used to carry out identification tests under this Division.
However, this Division does not apply to a non-citizen who:
is in immigration detention only because he or she is detained under section 192; and
has provided a personal identifier in accordance with a requirement under section 257A.
The authorised officer must, other than in the circumstances prescribed for the purposes of subsection 261AA(1):
require, in writing or orally, the non-citizen to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the authorised officer; and
carry out the one or more identification tests on the non-citizen.
However:
if the types of identification tests that the authorised officer may carry out is specified under section 5D—each identification test must be of a type so specified; and
each identification test must be carried out in accordance with Subdivision B; and
unless the authorised officer has reasonable grounds to believe that the non-citizen is not a minor or an incapable person—each identification test must be carried out in accordance with the additional requirements of Division 13AB.
Before carrying out an identification test, the authorised officer must:
inform the non-citizen that the non-citizen may ask that an independent person be present while the identification test is carried out and that the test be carried out by a person of the same sex as the non-citizen; and
inform the non-citizen of such other matters as are specified in the regulations.
(2) For the purposes of subsection (1), the authorised officer informs the non-citizen of a matter if the authorised officer informs the non-citizen of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the non-citizen is able to communicate with reasonable fluency.
The authorised officer may comply with this section by giving to the non-citizen, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the non-citizen is able to communicate with reasonable fluency.
Subdivision B—How identification tests are carried out
An identification test under this Division:
must be carried out in circumstances affording reasonable privacy to the non-citizen; and
if the non-citizen so requests and it is practicable to comply with the request—must not be carried out in the presence or view of a person who is of the opposite sex to the non-citizen; and
must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or is not required or permitted by another provision of this Act; and
must not involve the removal of more clothing than is necessary for carrying out the test; and
must not involve more visual inspection than is necessary for carrying out the test; and
if the test is one of 2 or more identification tests to be carried out on the non-citizen—must be carried out at the same time as the other identification tests, if it is practicable to do so.
When use of force is permitted
Subject to subsection (2) and section 261AF, an authorised officer, or a person authorised under section 261AG to help the authorised officer, may use reasonable force:
to enable the identification test to be carried out; or
to prevent the loss, destruction or contamination of any personal identifier or any meaningful identifier derived from the personal identifier.
However, this section does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person’s signature.
The officer or person must not use force unless:
the non-citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and
all reasonable measures to carry out the identification test without the use of force have been exhausted; and
use of force in carrying out the identification test is authorised under subsection (4).
Applications for authorisation to use force
An authorised officer may apply to a senior authorising officer (who is not an officer referred to in subsection (1)) for an authorisation to use force in carrying out the identification test.
Authorisation to use force
The senior authorising officer may authorise the use of force in carrying out the identification test if he or she is reasonably satisfied that:
the non-citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and
all reasonable measures to carry out the identification test without the use of force have been exhausted.
An authorisation under subsection (4):
may be given by telephone, fax or other electronic means; and
must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
A failure to comply with paragraph (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.
The power to give an authorisation under subsection (4) cannot be delegated to any other person.
Definition
In this section:
senior authorising officer means an officer whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section.
For the purposes of this Act, the carrying out of the identification test is not of itself taken:
to be cruel, inhuman or degrading; or
to be a failure to treat a person with humanity and with respect for human dignity.
However, nothing in this Act authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.
An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help.
If the non-citizen requests that the identification test be carried out by an authorised officer of the same sex as the non-citizen, the test must only be carried out by an authorised officer of the same sex as the non-citizen.
The identification test must be carried out in the presence of an independent person if:
force is used in carrying out the identification test; or
both of the following apply:
the non-citizen requests that an independent person be present while the identification test is being carried out;
an independent person is readily available at the same place as the non-citizen and is willing to attend the test within a reasonable time.
An authorised officer may video record the carrying out of the identification test.
If the carrying out of the identification test is not video recorded, the authorised officer may decide that the identification test must be carried out in the presence of an independent person.
When retesting is permitted
If:
(a) an authorised officer has carried out an identification test (the earlier test) on a non-citizen in accordance with this Division (including a test authorised under subsection (4)); and
either:
a personal identifier that is provided as a result of the earlier test being carried out is unusable; or
an authorised officer or an officer is not satisfied about the integrity of that personal identifier;
the officer who carried out the earlier test or another officer may require the non-citizen to provide the personal identifier again, and may carry out the test again in accordance with this Division, if:
the requirement is made while the earlier test is being carried out or immediately after it was carried out; or
carrying out the test again is authorised under subsection (4).
If the non-citizen is required under subsection (1) to provide the personal identifier again, the non-citizen is taken, for the purposes of this Division, not to have provided the personal identifier as a result of the earlier test being carried out.
Applications for authorisation to retest
An authorised officer may apply for an authorisation to carry out the test again. The application is to be made to:
if the earlier test was not a test authorised under subsection (4)—a senior authorising officer (who is not an officer referred to in subsection (1)); or
if the earlier test was a test authorised under subsection (4) by a senior authorising officer—the Secretary, Australian Border Force Commissioner or an SES Band 3 employee in the Department (who is not an officer referred to in subsection (1)).
Authorisation to retest
The senior authorising officer, Secretary, Australian Border Force Commissioner or SES Band 3 employee (as the case requires) may authorise the test to be carried out again if:
he or she is reasonably satisfied that the personal identifier that is provided as a result of the earlier test being carried out is unusable; or
he or she is not reasonably satisfied about the integrity of that personal identifier.
An authorisation under subsection (4):
may be given by telephone, fax or other electronic means; and
must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
A failure to comply with paragraph (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.
The power to give an authorisation under subsection (4) cannot be delegated to any other person.
Use of force
An authorisation under subsection (4) does not authorise the use of force in carrying out an identification test.
Note: See section 261AE on the use of force in carrying out identification tests.
Effect of refusing to authorise retesting
If an application for an authorisation to carry out an identification test again on a non-citizen is refused, the non-citizen is taken, for the purposes of this Act, to have complied with any requirement under this Act to provide the personal identifier in question.
Definitions
In this section:
senior authorising officer means an officer (other than an SES Band 3 employee in the Department) whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section.
SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.
Subdivision C—Obligations relating to video recordings of identification tests
In this Subdivision, unless the contrary intention appears:
permitted provision, of a video recording, has the meaning given by subsection 261AKD(2).
provide includes provide access to the recording.
related document means a document that contains information, derived from a video recording made under section 261AJ or from a copy of such a recording, from which the identity of the individual on whom the identification test in question was carried out is apparent or can reasonably be ascertained.
video recording means a video recording made under section 261AJ or a copy of such a recording, and includes a related document.
A person commits an offence if:
the person accesses a video recording; and
the person is not authorised under section 261AKC to access the video recording for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
This section does not apply if the access is through the provision of a video recording that is a permitted provision.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified person, or any person included in a specified class of persons, to access:
all video recordings; or
a specified video recording, or video recordings of a specified kind.
The Secretary or Australian Border Force Commissioner must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:
providing a video recording to another person in accordance with this Subdivision;
administering or managing the storage of video recordings;
making a video recording available to the person to whom it relates;
modifying related documents in order to correct errors or ensure compliance with appropriate standards;
any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act;
complying with laws of the Commonwealth or the States or Territories.
However, the Secretary or Australian Border Force Commissioner must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:
investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or
prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
A person commits an offence if:
the person’s conduct causes a video recording to be provided to another person; and
the provision of the recording is not a permitted provision of the recording.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(2) A permitted provision of a video recording is a provision of the recording that:
is for the purpose of administering or managing the storage of video recordings; or
is for the purpose of making the video recording in question available to the non-citizen to whom it relates; or
is for the purpose of a proceeding, before a court, the ART or another tribunal, relating to the non-citizen to whom the video recording in question relates; or
is for any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act; or
(e) is for the purpose of an investigation by the Information Commissioner under the Privacy Act 1988 or the Ombudsman relating to carrying out an identification test; or
is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to carrying out an identification test; or
takes place with the written consent of the non-citizen to whom the video recording in question relates.
However, a provision of a video recording is not a permitted provision of the recording if:
it constitutes a disclosure of identifying information relating to a personal identifier of a prescribed type; and
it is for the purpose of:
investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or
prosecuting a person for such an offence.
A person commits an offence if:
the person causes any unauthorised modification of a video recording; and
the person intends to cause the modification; and
the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
A person commits an offence if:
the person causes any unauthorised impairment of:
the reliability of a video recording; or
the security of the storage of a video recording; or
the operation of a system by which a video recording is stored; and
the person intends to cause the impairment; and
the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
In this Subdivision:
modification of a video recording; or
impairment of the reliability of a video recording; or
impairment of the security of the storage of a video recording; or
impairment of the operation of a system by which a video recording is stored;
by a person is unauthorised if the person is not entitled to cause that modification or impairment.
Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
For the purposes of an offence under this Subdivision, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.
For the purposes of subsection (1), if:
a person causes any modification or impairment of a kind mentioned in that subsection; and
the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
A person commits an offence if:
the person is the person who has day-to-day responsibility for the system under which a video recording is stored; and
the person fails physically to destroy the recording, and all copies of the recording, within 10 years after it was made.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Minors less than 15 years old
A person who is less than 15 years old must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of:
a measurement of the person’s height and weight; or
the person’s photograph or other image of the person’s face.
Persons present while identification test is carried out
If a person who is a minor provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:
a parent or guardian of the minor; or
an independent person.
However, if the Minister is the minor’s guardian, the test must be carried out in the presence of an independent person other than the Minister.
Incapable persons
A person who is an incapable person must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of:
a measurement of the person’s height and weight; or
the person’s photograph or other image of the person’s face.
Persons present while identification test is carried out
If a person who is an incapable person provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:
a parent or guardian of the incapable person; or
an independent person.
Subdivision A—Automatic forfeiture
The following things are forfeited to the Commonwealth:
a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved:
the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or
the entry or proposed entry into Australia of one or more such persons;
a vehicle or equipment:
on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or
used or involved in the contravention referred to in that paragraph.
Despite subsection (1), a vessel that:
was used or involved in a contravention of this Act of a kind referred to in that subsection; and
at the time of the contravention, was being used in the course of a regular public transport operation;
is not forfeited to the Commonwealth if both the master and the owner of the vessel:
did not know; and
could not reasonably be expected to have known;
that it was used or involved in the contravention.
In this section:
regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that:
is provided for a fee payable by persons using the service; and
is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and
is available to the general public on a regular basis.
Subdivision B—Seizure
An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if:
the thing is forfeited under section 261A; or
the authorised officer reasonably suspects that the thing is forfeited under section 261A.
If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing.
Subdivision C—Dealing with things seized as automatically forfeited
This Subdivision sets out rules about a thing that an officer seizes under section 261B.
The officer must give written notice of the seizure of the thing to the owner of the thing. However, if the owner cannot be identified after reasonable inquiry, the officer must give the notice to the person in whose possession or custody or under whose control the thing was immediately before it was seized.
If the officer cannot conveniently give the notice to the person referred to in subsection (1) in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing.
The notice must:
identify the thing; and
state that the thing has been seized; and
specify the reason for the seizure; and
state that the thing will be condemned as forfeited unless:
the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary or Australian Border Force Commissioner, within 21 days, a claim for the thing; or
within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and
specify the address of the Secretary or Australian Border Force Commissioner.
Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited.
A claim under subparagraph (3)(d)(i) must:
be in writing; and
be in English; and
state an address for service on the person making the claim.
The Secretary or Australian Border Force Commissioner may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if:
its custody or maintenance creates serious difficulties; or
the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value.
If the Secretary or Australian Border Force Commissioner causes the thing to be disposed of, the Secretary or Australian Border Force Commissioner may cause the disposal to be subject to specified conditions.
By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D, unless:
the following conditions are satisfied:
within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary or Australian Border Force Commissioner a written claim for the thing;
the claim is in English;
the claim sets out an address for service on the person making the claim; or
within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited.
Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary’s directions.
A person may claim the thing even if it is disposed of or destroyed before or after the claim.
If the thing is claimed under section 261F:
an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and
the Minister may give a written order that the thing is not condemned as forfeited; and
unless an order has already been made under paragraph (b), the Secretary or Australian Border Force Commissioner may give the claimant a written notice stating that the thing will be condemned as forfeited unless:
the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or
within one month, the Minister gives a written order that the thing is not condemned as forfeited.
Note 1: An officer may retain possession even if the Secretary or Australian Border Force Commissioner does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant.
Note 2: If the Secretary or Australian Border Force Commissioner does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.
(2) The Secretary or Australian Border Force Commissioner may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Secretary or Australian Border Force Commissioner. If the Secretary or Australian Border Force Commissioner does so, the letter is taken to be properly addressed for the purposes of Acts Interpretation Act 1901.section 29 of the
Subsection (2) does not limit the ways in which the notice may be given.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.
This section applies if the Secretary or Australian Border Force Commissioner gives the claimant a notice under section 261G about instituting proceedings:
to recover the thing; or
for a declaration that the thing is not forfeited.
If, within the period of one month after the notice is given:
the claimant does not institute such proceedings; and
the Minister does not give a written order that the thing is not to be condemned as forfeited;
the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.
If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:
before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or
at the end of the proceedings, there is:
an order for the claimant to recover the thing; or
if the thing has been sold or disposed of—an order for the Commonwealth to pay the claimant an amount in respect of the thing; or
a declaration that the thing is not forfeited.
For the purposes of subsection (3), if the proceedings go to judgment, they end:
if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.
If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to:
if the thing has been sold before the end of the proceedings—the proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or
if the thing has been disposed of (except by sale) or destroyed before the end of the proceedings—the market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate.
If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Secretary.
Subdivision D—Operation of Division
Sections 260 and 261 do not limit the operation of this Division.
Subdivision E—Minister’s order that a thing not be condemned as forfeited
A power of the Minister under this Division to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise such a power in respect of any thing, whether the Minister is requested to do so by any person, or in any other circumstances.
If the Minister makes an order under this Division that a thing is not to be condemned as forfeited, he or she must cause to be laid before each House of the Parliament a statement that sets out:
the order; and
the Minister’s reasons for making the order.
A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the order is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the order is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
Migration Act 1958
No. 62, 1958
Compilation No. 171
Compilation date: 4 June 2026
Includes amendments: Act No. 75, 2025
This compilation is in 2 volumes
Each volume has its own contents
About this compilation
This compilation
This is a compilation of the Migration Act 1958 that shows the text of the law as amended and in force on 4 June 2026 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au).
Application, saving and transitional provisions
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Presentational changes
The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. Any modifications affecting the law are accessible on the Register.
Self - repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 2—Arrival, presence and departure of persons 1
Division 14—Recovery of costs from certain persons 1
262 Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons 1
263 Secretary or Australian Border Force Commissioner able to issue notice of debt 2
264 Garnishee notice 2
265 Debt from failure to comply with garnishee notice 4
266 Future debts 5
267 Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts 5
268 Application of Division to the Crown 6
Division 14A—Monitoring compliance with student visa conditions 7
Subdivision A—Preliminary 7
268AA Definitions 7
268AB Division binds the Crown 8
268AD Powers conferred on magistrates in their personal capacity 8
Subdivision B—Notices requiring information and documents 8
268BA Production notices 8
268BB Contents of the production notice 9
268BC Serving production notices 10
268BD Attendance notices 10
268BE Contents of attendance notice 11
268BF Scales of expenses 11
268BG Reasonable compensation for giving copies 11
268BH Offence: failing to comply with a notice 12
268BI Offence: giving false or misleading information 12
268BJ Offence: giving false or misleading document 12
268BK Information and documents that incriminate a person 13
268BL Copies of documents 13
268BM Officer may retain documents 13
268BN Owner of document must be given copy 14
268BO Retaining documents 14
268BP Officer may apply to magistrate or ART member for a further period 15
268BQ Magistrate or ART member may order retention for further period 15
Subdivision C—Searching education providers’ premises 16
268CA Authorised officer may enter premises for a visa monitoring purpose 16
268CB Being on premises with consent 17
268CC Consent 17
268CD Authorised officer may apply for monitoring warrant 17
268CE Magistrate or ART member may issue monitoring warrant 17
268CF Magistrate or ART member may require more information 18
268CG Contents of monitoring warrant 18
268CH Use of reasonable force and assistance 18
268CI Monitoring powers of authorised officers 19
268CJ Authorised officer on premises with consent may ask questions 20
268CK Authorised officer on premises under warrant may ask questions 21
268CL Offence: failure to answer question 21
268CM Offence: giving false or misleading information 22
268CN Offence: giving or showing documents that are false or misleading in material particulars 22
268CO Use of electronic equipment in exercising monitoring powers 23
268CP Use of electronic equipment by experts 23
268CQ Extension of period 24
268CR Powers without warrant in emergency situations 24
268CS Retaining seized things 25
268CT Authorised officer may apply for a thing to be retained for a further period 25
268CU Magistrate or ART member may order that thing be retained 26
268CV Occupier to provide authorised officer with all facilities and assistance 26
268CW Announcement before entry 27
268CX Copy of monitoring warrant to be given to occupier before entry 27
268CY Compensation for damage to electronic equipment or data 27
268CZ Occupier entitled to be present during execution of monitoring warrant 28
268CZA Identity cards 28
268CZB Authorised officer must produce identity card on request 29
268CZC Officer may apply for warrants by telephone etc. 29
268CZD Magistrate or ART member may grant warrant by telephone etc. 30
268CZE Procedure for issuing warrant by telephone etc. 30
268CZF Procedure after telephone warrant ceases or is executed 31
268CZG Form of warrant authorises exercise of power 31
268CZH Court to assume that exercise of power not authorised by telephone etc. warrant 32
Division 15—General 33
269 Securities 33
270 Reports of absences of crews of vessels 34
271 Proof of certain matters 35
272 Migrant centres 38
273 Detention centres 39
274 Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons 39
Part 3—Migration agents and immigration assistance 41
Division 1—Preliminary 41
275 Interpretation 41
276 Immigration assistance 43
278 Relation by employment 45
278A Eligibility for restricted legal practitioners 46
279 Crimes Act 1914 to apply to this Part 48Part VIIC of the
Division 2—Restrictions on giving of immigration assistance and making of immigration representations 49
280 Restrictions on giving of immigration assistance 49
281 Restriction on charging fees for immigration assistance 51
282 Restriction on charging fees for immigration representations 52
283 False representation that a person is a registered migration agent 53
284 Restriction on self-advertising of the giving of immigration assistance 54
285 Restriction on other advertising of immigration assistance 54
Division 3—Registration of migration agents 56
287 Register of Migration Agents 56
288 Application for registration 57
288A Publishing requirement 59
288B Requirement to provide further information etc. 59
289 Registration 61
289A Applicant must not be registered if academic and vocational requirements are not satisfied 62
289B Applications by Australian legal practitioners 62
290 Applicant must not be registered if not a person of integrity or not fit and proper 63
290A Applicant must not be registered if continuing professional development requirements are not satisfied 64
290B Applicant must not be registered if any unpaid registration status charge 65
291 Applicant must not be registered if registration refused in past year 65
291A Applicant must not be registered if suspension would be in effect 65
292 Applicant must not be registered if registration cancelled in past 5 years 66
292A Applicant must not be registered if any barring period has not ended 66
292B Applicant must not be registered unless he or she holds appropriate professional indemnity insurance 66
293 Applicant under 18 must not be registered 67
294 Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa 67
295 Notice of refusal of application 67
299 Period of registration 67
300 Automatic continuation of registration 68
301 Migration Agents Registration Authority must warn of expiry 70
302 Automatic deregistration 70
302A Cancellation of registration—Australian legal practitioners 70
303 Disciplining registered migration agents 71
304 Period of suspension 72
304A Conditions for lifting cautions 72
305 Notice of disciplinary decision 72
305A Making disciplinary details publicly available 73
305B Providing disciplinary details to clients 73
305C Requiring registered migration agents to give information or documents 74
306 Review by the ART 75
306AA Stay orders 75
Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents 76
306A Objects of this Division 76
306B Inactive migration agents 76
306C Definition of client 78
306D Power to obtain documents from inactive migration agent 78
306E Power to obtain documents from representative of deceased inactive migration agent 79
306F Power to obtain documents from representative of deceased registered migration agent 80
306G Reasonable compensation 81
306H Failure to comply with notice 81
306J Self-incrimination 82
306K Migration Agents Registration Authority to give client documents to clients 82
306L Compensation—constitutional safety-net 83
Division 4—Investigations and decision-making by the Migration Agents Registration Authority 85
308 Requiring registered migration agents to give information 85
309 Persons may make submissions 86
310 Persons may appear before Migration Agents Registration Authority 86
311 Migration Agents Registration Authority not bound by legal forms etc. 87
Division 4A—Disciplining former registered migration agents 88
311A Barring former registered migration agents from being registered for up to 5 years 88
311B Notice of disciplinary decision 88
311C Making disciplinary details publicly available 89
311D Former registered migration agent may make a submission etc. 89
311E Authority not bound by legal forms etc. 90
311EA Requiring former registered migration agents to give information or documents 91
311F Review by the ART 92
Division 5—Obligations of registered migration agents 93
312 Notification obligations 93
312A Notification of giving of immigration assistance to visa applicants 94
312B Notification of giving of immigration assistance to review applicants 95
313 Persons charged for services to be given detailed statement of services 95
314 Code of Conduct for migration agents 96
Division 6—Migration Agents Registration Authority 97
315 Migration Agents Registration Authority—nature, powers and functions 97
316 Functions of Migration Agents Registration Authority 97
317 General powers of the Migration Agents Registration Authority 98
318 Power to refer people to mediation 98
319 Referral of conduct of certain migration agents to legal disciplinary authorities 98
320 Minister may delegate powers and functions 99
321A Disclosure of personal information by the Migration Agents Registration Authority 99
Division 6A—Registration application fees and registration status charges 101
332A Collection of registration status charge 101
Division 7—Other things 102
332C Removing disciplinary details—registered migration agents 102
332D Removing disciplinary details—former registered migration agents 102
332E Protection from civil proceedings 102
332F Disclosure of personal information by the Secretary 104
332G Disclosure of personal information by the ART 104
332H Giving of notices under this Part 105
Division 8—Transitional arrangements for Australian legal practitioners 107
333 Definitions 107
333A Restrictions on giving immigration assistance and making immigration representations 107
333B Registered migration agents who were unrestricted legal practitioners immediately before the Division 8 commencement day 107
333C Persons who were restricted legal practitioners immediately before the Division 8 commencement day 108
333D Registration applications made before the Division 8 commencement day 108
333E Events required to be notified under s 312(4) 109
Part 4—Offences relating to decisions under Act 110
334 Offences in relation to false or misleading statements regarding the making of decisions 110
335 Offence of undertaking, for reward, to cause decisions to be made etc. 110
336 Court may order reparation for loss suffered 111
Part 4A—Obligations relating to identifying information 112
Division 1—Preliminary 112
336A Definitions 112
336B Application 113
Division 2—Accessing identifying information 114
336C Accessing identifying information 114
336D Authorising access to identifying information 114
Division 3—Disclosing identifying information 116
336E Disclosing identifying information 116
336F Authorising disclosure of identifying information to foreign countries etc. 119
336FA Disclosure of certain personal identifiers to selected individuals 122
336FB Disclosure of other relevant information to selected individuals 123
336FC Disclosure of certain personal identifiers to the general public 123
336FD Disclosure of other relevant information to the general public 125
Division 4—Modifying and impairing identifying information 126
336G Unauthorised modification of identifying information 126
336H Unauthorised impairment of identifying information 126
336J Meanings of unauthorised modification and unauthorised impairment etc. 126
Division 5—Destroying identifying information 128
336K Destroying identifying information 128
336L Identifying information that may be indefinitely retained 129
Part 5—Reviewable migration decisions and reviewable protection decisions 131
Division 1—Preliminary 131
336M Simplified outline of this Part 131
336N Scope of this Part 131
336P Interaction with the ART Act 131
337 Interpretation 132
338 Meaning of reviewable migration decision 133
338A Meaning of reviewable protection decision 137
339 Conclusive certificates 138
Division 2—ART review 139
347 Application for ART review 139
347A Who can apply for ART review etc. 140
348 ART to review reviewable migration decisions and reviewable protection decisions 141
348A Parties to a proceeding for review 141
349 Remittal 142
350 Review of assessments made under section 93 142
351 Minister may substitute more favourable decision 143
352 ART to notify Secretary of application for review 144
Division 3—ART powers 146
353 ART may require Secretary to arrange for investigations etc. 146
Division 4—Conduct of ART review—general 147
357 Scope of this Division 147
357A Exhaustive statement of natural justice hearing rule 147
359A Information and invitation given by ART 148
362A Applicant entitled to have access to written material before Tribunal 149
363 Reviews may be combined 150
366D Examination and cross-examination not permitted 150
367 Certain bridging visa decisions—to be made within prescribed period 150
367A How ART is to deal with new claims or evidence in review of reviewable protection decisions 150
367B Certain ART proceedings must be in private 151
Division 4A—Conduct of ART review—applications to be reviewed on the papers 152
367C Scope of this Division 152
367D Interaction with ART Act 153
367E Exhaustive statement of natural justice hearing rule 153
367F ART must invite submissions and evidence on certain issues 154
367G ART must give adverse information to applicant 155
367H Content of invitation and adverse information given 156
367J Applicant to have access to written material before Tribunal 157
367K Reviews may be combined 157
367L ART may be reconstituted 158
367M Dismissing applications to be reviewed on the papers 158
367N Decision without hearing 158
Division 5—ART decisions 160
368 ART’s decision and written statement etc. 160
368A Notification of ART’s decision 162
368B Notice of dismissal and reinstatement decisions and when taken to have been made 162
368C Reinstatement of application or confirmation of dismissal 164
369 Identifying information relating to reviewable protection decisions not to be published 165
Division 6—Other matters 166
374 How the ART must give certain notices and directions to an applicant 166
375 Restrictions on disclosure of certain information etc. 166
375A Certain information only to be disclosed to ART 167
376 ART’s discretion in relation to disclosure of certain information etc. 167
378 Protected information and documents 168
Division 7—Giving and receiving documents 170
379AA Giving documents by ART where no requirement to do so by specified method 170
379A Methods by which ART gives documents to a person 171
379C When a person other than the Secretary is taken to have received a document from the ART 173
379EA Giving documents by ART—combined applications 175
379G Authorised recipient 175
Part 8—Judicial review 177
Division 1—Privative clause 177
474 Decisions under Act are final 177
Division 1A—Interaction with the ART Act 180
474AA Interaction with the ART Act 180
Division 2—Jurisdiction and procedure of courts 181
474A Definition of ART Act migration decision 181
475 This Division not to limit section 474 182
476 Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) 182
476A Limited jurisdiction of the Federal Court 183
476B Remittal by the High Court 184
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2) 185
477A Time limits on applications to the Federal Court 186
478 Persons who may make application 187
479 Parties to review 187
480 Intervention by Attorney-General 187
481 Operation etc. of decision 188
482 Changing person holding, or performing the duties of, an office 188
484 Exclusive jurisdiction of High Court, Federal Court and Federal Circuit and Family Court of Australia (Division 2) 188
Part 8A—Restrictions on court proceedings 190
486A Time limit on applications to the High Court for judicial review 190
486AA Intervention by Attorney-General 191
486AB Operation etc. of decision 191
486B Multiple parties in migration litigation 191
486C Persons who may commence or continue proceedings in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court 193
486D Disclosing other judicial review proceedings 194
Part 8B—Costs orders where proceedings have no reasonable prospect of success 196
486E Obligation where there is no reasonable prospect of success 196
486F Cost orders 196
486G Person must be given reasonable opportunity to argue against costs order 197
486H Limited waiver of legal professional privilege 198
486I Lawyer’s certification 198
486J Part does not limit other powers to order costs against third parties 199
486K Definitions 199
Part 8C—Reports on persons in detention for more than 2 years 200
486L What is the detention reporting start time for a person? 200
486M What is a detention reporting time for a person? 200
486N Secretary’s obligation to report to Commonwealth Ombudsman 200
486O Commonwealth Ombudsman to give Minister assessment of detention arrangements 201
486P Minister to table statement from Commonwealth Ombudsman 202
486Q Application of Ombudsman Act 1976 202
Part 8D—Civil penalties 203
Division 1—Obtaining a civil penalty order 203
486R Civil penalty orders 203
486S Additional rules relating to the sponsorship civil penalty provisions 204
486T Civil enforcement of penalty 205
486U Conduct contravening more than one civil penalty provision 205
486V Multiple contraventions 206
486W Proceedings may be heard together 206
486X Civil evidence and procedure rules for civil penalty orders 206
486Y Requirement for persons to assist in applications for civil penalty orders 206
Division 2—Civil proceedings and criminal proceedings 208
486Z Civil proceedings after criminal proceedings 208
486ZA Criminal proceedings during civil proceedings 208
486ZB Criminal proceedings after civil proceedings 208
486ZC Evidence given in civil proceedings not admissible in criminal proceedings 209
Division 3—Miscellaneous 210
486ZD Ancillary contravention of civil penalty provisions 210
486ZE Mistake of fact 210
486ZF State of mind 211
486ZG Civil double jeopardy 211
Part 8E—Investigation powers relating to certain offences and provisions 212
Division 1—Preliminary 212
487A Definitions 212
Division 2—Requiring persons to give information or produce documents 214
487B Secretary or Australian Border Force Commissioner may require a person to give information or produce a document 214
487C Self-incrimination 215
Division 3—Search warrants 216
Subdivision A—Search powers 216
487D Authorised officer may enter premises by consent or under a search warrant 216
487E Search powers of authorised officers 216
487F Powers relating to electronic equipment 217
487G Seizing evidence of the contravention of related provisions etc. 218
487H Persons assisting authorised officers 219
487J Use of force in executing a search warrant 220
Subdivision B—Powers of authorised officers to ask questions and seek production of documents 220
487K Authorised officer may ask questions and seek production of documents 220
Subdivision C—Obligations and incidental powers of authorised officers 221
487L Consent 221
487M Announcement before entry under search warrant 221
487N Authorised officer to be in possession of search warrant 222
487P Details of search warrant etc. to be given to occupier 222
487Q Completing execution of search warrant after temporary cessation 223
487R Completing execution of search warrant stopped by court order 224
487S Expert assistance to operate electronic equipment 225
487T Compensation for damage to electronic equipment 226
Subdivision D—Occupier’s rights and responsibilities 227
487U Occupier entitled to observe execution of search warrant 227
487V Occupier to provide authorised officer with facilities and assistance 227
Subdivision E—General provisions relating to seizure 228
487W Copies of seized things to be provided 228
487X Receipts for seized things 229
487Y Return of seized things 229
487Z Issuing officer may permit a seized thing to be retained 230
487ZA Disposal of seized things 231
487ZB Compensation for acquisition of property 231
Subdivision F—Issue of search warrants 232
487ZC Issue of search warrants 232
487ZD Search warrants by telephone, fax etc. 233
487ZE Authority of search warrant 235
487ZF Offence relating to search warrants by telephone, fax etc. 235
Subdivision G—Identity cards 236
487ZG Identity cards 236
Subdivision H—Powers of issuing officers 237
487ZH Powers of issuing officers 237
Part 9—Miscellaneous 238
Division 1—Bogus documents 238
487ZI Prohibition on, and forfeiture of, bogus documents 238
487ZJ Seizure of bogus documents 238
487ZK Document condemned as forfeited 239
487ZL Dealing with a document after it is condemned as forfeited 240
Division 2—Other 241
487 Liability for identification tests 241
488 Tampering with movements records 241
488A Giving information to other relevant agencies 243
488AA Things seized under Crimes Act search warrant and information about such things 244
488B Authorisation to disclose information to an officer 245
489 Notified data bases 245
490 Identification card to be deemed to continue to be in a form approved by the Minister 246
492 Commencement of prosecutions 246
493 Conduct of directors, employees and agents 247
494 Jurisdiction of courts 248
494AA Bar on certain legal proceedings relating to unauthorised maritime arrivals 249
494AB Bar on certain legal proceedings relating to transitory persons 250
494A Giving documents by Minister where no requirement to do so by section 494B method 251
494B Methods by which Minister gives documents to a person 252
494C When a person is taken to have received a document from the Minister 255
494D Authorised recipient 257
494E When documents are taken to comply with content requirements 258
495 Minister may approve forms 260
495A Minister may arrange for use of computer programs to make decisions etc. 260
495B Minister may substitute more favourable decisions for certain computer-based decisions 261
496 Delegation 261
497 Delegate not required to perform certain administrative tasks 262
498 Exercise of powers under Act 263
499 Minister may give directions 263
500 Review of decision 263
500AA Applications generally cannot be made to the ART guidance and appeals panel 270
500A Refusal or cancellation of temporary safe haven visas 270
501 Refusal or cancellation of visa on character grounds 276
501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2) 284
501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2) 286
501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA 287
501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) 288
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) 290
501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test 291
501E Refusal or cancellation of visa—prohibition on applying for other visas 292
501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas 293
501G Refusal or cancellation of visa—notification of decision 294
501H Refusal or cancellation of visa—miscellaneous provisions 295
501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas 296
501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision 296
501K Identity of applicants for protection visas not to be published by the ART 297
501L Disclosure of information to the Minister 298
501M Collection, use and disclosure of criminal history information 300
502 Minister may decide in the national interest that certain persons are to be excluded persons 301
503 Exclusion of certain persons from Australia 302
503A Protection of information supplied by law enforcement agencies or intelligence agencies 302
503B Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)—permanent non-disclosure orders 307
503C Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)—interim non-disclosure orders 312
503D Details of gazetted agency to be treated as protected information 315
503E Validation of decisions 315
504 Regulations 316
505 Regulations about visa criteria 320
506 Regulations about passenger cards 320
506A Regulations may provide for infringement notices 321
506B Tax file numbers 321
507 Marital or relationship status 323
The Schedule—Acts relating to immigration and deportation repealed 325
Endnotes 326
Endnote 1—About the endnotes 326
Endnote 2—Abbreviation key 328
Endnote 3—Legislation history 329
Endnote 4—Amendment history 370
Endnote 5—Repeal tables 466
Endnote 6—Renumbering tables 473
A person who:
is, or has been, detained under section 189; and
was on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against this Act or against a prescribed law in force in the Commonwealth or in a State or Territory, being a law relating to the control of fishing; and
is convicted of the offence;
and the master, owner, agent and charterer of the vessel on which the person travelled to Australia, are, jointly and severally, liable to pay the Commonwealth:
the amount applicable to the person under subsection (2) for the cost of keeping and maintaining the person while the person is in immigration detention; and
the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and
the cost of transporting the person, and a person holding the person, between places of immigration detention; and
if the person is returned to the vessel or another vessel—the cost of transporting the person, and a person holding the person, from the place of immigration detention to the vessel or that other vessel; and
if the person is, or is to be, removed from Australia at the expense of the Commonwealth—the cost of that removal (including the cost of transporting a person holding the person).
The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.
An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.
To avoid doubt, the liability to pay the Commonwealth an amount under subsection (1) may be enforced:
at the time the person is convicted of an offence mentioned in paragraph (1)(b); or
after the person has served the whole or a part of any sentence imposed upon the person because of his or her conviction of an offence mentioned in paragraph (1)(b).
If:
a person is liable to pay to the Commonwealth an amount under section 262; and
the Secretary or Australian Border Force Commissioner gives written notice to the person giving particulars of the liability and stating that the Secretary or Australian Border Force Commissioner requires payment of a specified amount not exceeding that amount;
the specified amount is a debt recoverable by the Commonwealth from the person:
in a court of competent jurisdiction; or
by garnishee notice under section 264.
(1) If an amount (debt) is a debt recoverable from a person (debtor) by the Commonwealth under section 263 or 265, the Secretary or Australian Border Force Commissioner may by written notice given to another person:
from whom any money is due or accruing, or may become due, to the debtor; or
who holds, or may later hold, money for or on account of the debtor; or
who holds, or may later hold, money on account of some other person for payment to the debtor; or
who has authority from some other person to pay money to the debtor;
require the person to whom the notice is given to pay to the Commonwealth:
an amount specified in the notice, not exceeding the debt or the amount of the relevant money; or
such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is paid.
The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in it, not being a time before:
the relevant money becomes due or is held; or
the end of the period of 14 days after the notice is given.
If the debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the debtor.
A person who makes a payment to the Commonwealth in compliance with the notice is taken to have made the payment under the authority of the person who owes the debt to the Commonwealth and of any other person concerned.
If, after the notice is given to a person, an amount is paid by another person in reduction or satisfaction of the debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.
If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand, even though the condition has not been fulfilled.
(1) If a person (garnishee debtor):
is given a notice under section 264 in respect of a debt; and
fails to comply with the notice to the extent that the garnishee debtor is capable of complying with it;
then the amount of the debt outstanding is recoverable from the garnishee debtor by the Commonwealth by:
legal proceedings in a court of competent jurisdiction; or
a garnishee notice under section 264.
The reference in subsection (1) to the amount of the debt outstanding is a reference to whichever is the lesser of:
as much of the amount required by the notice under section 264 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or
as much of the debt due at the time when the notice was given as remains due from time to time.
If the Commonwealth recovers:
the whole or a part of the debt due by the garnishee debtor; or
the whole or a part of the debt due by the debtor (within the meaning of section 264);
then:
both debts are reduced by the amount that the Commonwealth has so recovered; and
the amount specified in the notice under section 264 is taken to be reduced by the amount so recovered.
For the purposes of this Division, an amount is a future debt in relation to a person if the Secretary or Australian Border Force Commissioner believes on reasonable grounds that the person will, under section 262, become liable to pay the amount to the Commonwealth.
(1) If there is a future debt in relation to a person (future debtor), the Secretary or Australian Border Force Commissioner may by written notice given to another person:
from whom any money is due or accruing, or may become due, to the future debtor; or
who holds, or may later hold, money for or on account of the future debtor; or
who holds, or may later hold, money on account of some other person for payment to the future debtor; or
who has authority from some other person to pay money to the future debtor;
require the other person to retain for the period, not exceeding 28 days, specified in that notice:
an amount specified in the notice, not exceeding the future debt or the amount of the relevant money; or
such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the future debtor until that debt is paid.
If the future debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the future debtor.
If, after the notice is given to a person, an amount is paid by another person in respect of the future debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.
If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand even though the condition has not been fulfilled.
This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
For the purposes of this Division, a notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, respectively, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be.
Subdivision A—Preliminary
In this Division:
attendance notice means a notice given under section 268BD.
document includes copy of a document.
education provider means an institution or other body or person in Australia that provides, has provided or seeks to provide courses of education or of training to persons who hold student visas.
monitoring warrant means a warrant issued under section 268CE or 268CZD.
occupier:
in relation to premises comprising a vehicle or vessel—means the person apparently in charge of the vehicle or vessel; and
in any case—includes a person who apparently represents the occupier.
premises means:
an area of land or any other place, whether or not it is enclosed or built on; or
a building or other structure; or
a vehicle or vessel;
and includes a part of any such premises.
production notice means a notice given under section 268BA.
visa monitoring purpose means a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.
This Division binds the Crown in each of its capacities.
However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.
A power conferred on a magistrate by section 268BQ, 268CE, 268CU or 268CZD is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
The magistrate need not accept the power conferred.
A magistrate exercising a power mentioned in subsection (1) has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
Subdivision B—Notices requiring information and documents
This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a visa monitoring purpose.
The Secretary or Australian Border Force Commissioner may give the individual a written notice requiring him or her to:
give any information or documents relevant to the visa monitoring purpose to an authorised officer; or
show any such documents to an authorised officer; or
make copies of any such documents and give the copies to an authorised officer.
Note: The Secretary or Australian Border Force Commissioner may also give the individual an attendance notice: see section 268BD.
If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.
The individuals who may be given a production notice are:
an officer or employee of an education provider; or
a consultant to an education provider; or
a partner in an education provider; or
an individual trading as an education provider.
A production notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.
A production notice must:
state that it is given under section 268BA; and
set out the effects of sections 268BH, 268BI and 268BJ; and
state how and by when the information or documents must be given or shown.
In so far as the notice covers information or documents:
that relate to any extent to the calendar year in which the notice is given; and
that are required to be given or shown on the premises where they are currently located;
the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.
In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.
The Secretary or Australian Border Force Commissioner must give a production notice to an individual:
by delivering it to the individual personally; or
by:
leaving it at the address of the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner; and
taking reasonably practicable action to draw the individual’s attention to the notice; or
by sending it by ordinary or any other class of pre-paid post to the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner.
However, if the Secretary or Australian Border Force Commissioner uses the method in paragraph (1)(c), the time mentioned in paragraph 268BB(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).
Note: Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.
This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a visa monitoring purpose.
The Secretary or Australian Border Force Commissioner may give the individual written notice requiring the individual to attend before an authorised officer and answer questions about the matter.
Note: The Secretary or Australian Border Force Commissioner may also give the individual a production notice: see section 268BA.
The individuals who may be given an attendance notice are:
an officer or employee of an education provider; or
a consultant to an education provider; or
a partner in an education provider; or
an individual trading as an education provider.
An attendance notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.
An attendance notice must:
state that it is given under section 268BD; and
set out the effects of sections 268BH, 268BI and 268BJ; and
state where and when the individual is to attend.
The time mentioned in paragraph (c) must be at least 14 days after the notice is given.
An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.
The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Subdivision.
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).
A person who refuses or fails to comply with a production or attendance notice commits an offence.
Penalty: Imprisonment for 6 months.
However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice commits an offence.
Penalty: Imprisonment for 12 months.
A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice, commits an offence.
Penalty: Imprisonment for 12 months.
However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:
stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and
setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.
However, if the person is an individual:
the information, document or answer to the question; or
any other information, document or thing obtained as a direct or indirect result of complying with a notice;
is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 268BI or 268BJ.
An authorised officer, or another officer with an authorised officer’s permission, may:
inspect a document given or shown to the authorised officer under this Subdivision; and
make and retain copies of, or take and retain extracts from, such a document; and
retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).
An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:
for the purposes of this Act; or
for the purposes of an investigation as to whether an offence has been committed; or
to enable evidence of an offence to be secured for the purposes of a prosecution.
However, the document must not be retained for longer than 60 days after the authorised officer was given the document.
Note: The authorised officer may apply to retain the document for a further period: see section 268BP.
If an officer retains a document under the Secretary or Australian Border Force Commissioner must as soon as practicable:section 268BM, then
certify a copy of the document to be a true copy; and
(b) give the copy to the person (the owner) otherwise entitled to possession of the document.
The certified copy must be received in all courts and tribunals as evidence as if it had been the original.
Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the Secretary or Australian Border Force Commissioner thinks appropriate.
This section applies 60 days after a document is given to an authorised officer under this Subdivision.
The authorised officer must take reasonable steps to return the document to the person who gave the officer the document or to the owner if that person is not entitled to possess it.
However, the authorised officer does not have to take those steps if:
the authorised officer may retain the document because of an order under section 268BQ; or
the authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.
An authorised officer given a document under this Subdivision, or another officer who is currently retaining such a document, may apply to a magistrate or ART member for an order that the officer may retain the document for a further period.
The application must be made before the end of:
60 days after the document was given to the authorised officer; or
a period previously specified in an order of a magistrate or ART member under section 268BQ.
Before making the application, the officer must:
take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and
if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.
The magistrate or ART member may order that the officer who made the application under section 268BP may retain the document if the magistrate or ART member is satisfied that it is necessary for the officer to retain it:
for the purposes of this Act; or
for the purposes of an investigation as to whether an offence has been committed; or
to enable evidence of an offence to be secured for the purposes of a prosecution.
The order must specify the period for which the officer may retain the document.
Subdivision C—Searching education providers’ premises
An authorised officer may for a visa monitoring purpose:
enter any premises:
occupied by an education provider for the purposes of providing courses of education or of training; or
at which it is reasonable to believe there might be a thing belonging to or possessed by an education provider, or an activity conducted by or with the consent of the provider, that is relevant to a visa monitoring purpose (whether or not those premises are occupied by the provider); and
exercise the monitoring powers set out in section 268CI.
An authorised officer is not authorised to enter premises under subsection (1) unless:
the occupier of the premises has consented to the entry and the officer has shown his or her identity card if requested by the occupier; or
Note: Section 268CC sets out the requirements for obtaining the occupier’s consent.
the entry is made under a monitoring warrant.
Note: Monitoring warrants are issued under section 268CE or 268CZD.
The powers in this Subdivision may be exercised even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.
An authorised officer may enter premises under section 268CA with the consent of the occupier of the premises at any reasonable time of the day or night.
However, the authorised officer must leave the premises if the occupier asks the officer to do so.
Before obtaining the consent of a person for the purposes of paragraph 268CA(2)(a), the authorised officer must inform the person that he or she may refuse consent.
An entry of an authorised officer with the consent of a person is not lawful unless the person voluntarily consents to the entry.
An authorised officer may apply to a magistrate or ART member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1).
Note: Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 268CZD.
The officer must give the magistrate or ART member an information on oath or affirmation that sets out the grounds for seeking the warrant.
The magistrate or ART member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.
The magistrate or ART member may require an authorised officer or other person to give the magistrate or ART member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.
The information may be given either orally or by affidavit.
The magistrate or ART member must not issue the warrant until the officer or other person has given the required information.
A monitoring warrant must:
authorise one or more authorised officers:
to enter the premises; and
to exercise the powers under section 268CI in relation to the premises; and
state whether the entry is authorised at any time of the day or night or during specified hours of the day or night; and
state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and
state the purpose for which the warrant is issued; and
state that the warrant is issued under section 268CE.
The authorised officers do not have to be named in the warrant.
An authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising the powers under section 268CI.
(1) For the purposes of this Subdivision, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 268CA:
to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;
to examine any such thing;
to examine any activity that is conducted on the premises by, or with the consent of, the education provider that might be relevant to a visa monitoring purpose;
to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;
to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;
to take extracts from or make copies of any such document;
to take onto the premises any equipment and materials that the authorised officer requires for the purpose of exercising powers in relation to the premises;
the powers in subsections (2), (3) and (5).
(2) For the purposes of this Subdivision, the monitoring powers include the power to operate equipment that is on the premises to see whether:
the equipment; or
a disk, tape or other storage device that:
is on the premises; and
can be used with the equipment or is associated with it;
contains information belonging to the education provider that is relevant to a visa monitoring purpose.
(3) For the purposes of this Division, the monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:
to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;
to operate such facilities to transfer the information to a disk, tape or other storage device that:
is brought to the premises for the exercise of the power; or
is on the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier (as appropriate);
to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).
The powers mentioned in subsections (2) and (3) must be exercised in accordance with sections 268CO, 268CP and 268CQ.
(5) If an authorised officer, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code, the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.
An authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:
ask the occupier to:
answer any questions that are relevant to a visa monitoring purpose; and
give or show the officer any document requested by the officer that is relevant to the matter; or
ask any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.
Note: A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.
An authorised officer who is authorised to enter premises by a monitoring warrant may:
require the occupier of the premises to:
answer any questions that are relevant to a visa monitoring purpose; and
give or show the officer any document requested by the officer that is relevant to a visa monitoring purpose; or
require any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.
Note 1: A person could commit an offence if the person fails to comply with a requirement under this section: see section 268CL.
Note 2: A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.
A person commits an offence if the person refuses or fails to comply with a requirement under section 268CK (officer on premises under warrant may ask questions).
Penalty: Imprisonment for 6 months.
However, a person does not commit an offence if answering the question or giving or showing the document might tend to incriminate the person or expose the person to a penalty.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
A person who gives false or misleading information in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK commits an offence.
Penalty: Imprisonment for 12 months.
A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK, commits an offence.
Penalty: Imprisonment for 12 months.
However, the person does not commit an offence if the document is accompanied by a written statement signed by the person:
stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and
setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
In order to exercise monitoring powers, an authorised officer or a person assisting may operate electronic equipment on the premises if he or she reasonably believes that this can be done without damaging the equipment or data recorded on the equipment.
Note: Compensation may be payable in certain circumstances if the equipment or data is damaged: see section 268CY.
This section applies if the authorised officer or a person assisting reasonably believes that:
there is on the premises information belonging to the education provider concerned:
that is relevant to a visa monitoring purpose; and
that might be accessible by operating electronic equipment that is on the premises; and
expert assistance is required to operate the equipment; and
if he or she does not take action under subsection (2), the information might be destroyed, altered or otherwise interfered with.
The authorised officer or person assisting may do whatever is necessary to secure the equipment.
Before doing so, the authorised officer or person assisting must give notice to the occupier of the premises of:
his or her intention to secure equipment; and
the fact that the equipment may be secured for up to 24 hours.
The equipment may only be secured until the earlier of:
24 hours later; or
the equipment being operated by the expert.
If an authorised officer or a person assisting reasonably believes that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate or ART member for an extension of the period.
The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.
The provisions of this Subdivision relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.
This section applies when an authorised officer is on premises under section 268CA if the officer reasonably suspects that:
(a) a thing relevant to an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code is on the premises; and
it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and
it is necessary to exercise the power without the authority of a monitoring warrant because the circumstances are so serious and urgent.
The authorised officer may:
search the premises, and any receptacle on the premises, for the thing; and
seize the thing if he or she finds it there; and
exercise the powers mentioned in subsections 268CI(2) and (3) in relation to the thing.
This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:
the reason for the thing’s seizure no longer exists or it is decided that the thing is not to be used in evidence; or
the period of 60 days after the thing’s seizure ends.
The authorised officer must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
However, the authorised officer does not have to take those steps if:
in a paragraph (1)(b) case:
proceedings in respect of which the thing might afford evidence have been instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
the authorised officer may retain the thing because of an order under section 268CU; or
in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or
the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
This section applies if an authorised officer has seized a thing under section 268CR and proceedings in respect of which the thing might afford evidence have not commenced before the end of:
60 days after the seizure; or
a period previously specified in an order of a magistrate or ART member under section 268CU.
The authorised officer may apply to a magistrate or ART member for an order that the officer may retain the thing for a further period.
Before making the application, the authorised officer must:
take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and
if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.
The magistrate or ART member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or ART member is satisfied that it is necessary for the officer to do so:
for the purposes of an investigation as to whether an offence has been committed; or
to enable evidence of an offence to be secured for the purposes of a prosecution.
The order must specify the period for which the officer may retain the thing.
The occupier of the premises to which a monitoring warrant relates must provide the authorised officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.
A person commits an offence if the person contravenes subsection (1).
Penalty for contravention of this subsection: 10 penalty units.
An authorised officer executing a monitoring warrant must, before entering premises under the warrant:
announce that he or she is authorised to enter the premises; and
give a person on the premises (if there is one) an opportunity to allow entry to the premises.
If a monitoring warrant is being executed on premises and the occupier of the premises is present, the authorised officer must make a copy of the warrant available to the occupier.
The authorised officer must identify himself or herself to that person.
This section applies if:
damage is caused to equipment as a result of it being operated as mentioned in section 268CO; or
the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because:
insufficient care was exercised in selecting the person who was to operate the equipment; or
insufficient care was exercised by the person operating the equipment.
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.
In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.
If a monitoring warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.
The right to observe the execution of the warrant ceases if the occupier impedes that execution.
This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.
(1) For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary or Australian Border Force Commissioner. It must contain a recent photograph of the authorised officer.
A person commits an offence if:
the person holds or held an identity card for the purposes of this Subdivision; and
the person ceases to be an authorised officer for all purposes under this Act; and
the person does not, as soon as is practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner.
Penalty: 1 penalty unit.
This offence is one of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
However, the person does not commit the offence if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.
An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.
An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:
the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and
the authorised officer fails to comply with the request.
An authorised officer may apply to a magistrate or ART member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.
The magistrate or ART member may require communication by voice to the extent that it is practicable in the circumstances.
Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.
However, the officer may make the application before the information has been sworn or affirmed, if necessary.
Before issuing the warrant the magistrate or ART member must:
consider the information prepared under subsection 268CZC(3); and
receive any further information that the magistrate or ART member may require about the grounds on which the warrant is being sought.
The magistrate or ART member may issue the warrant if the magistrate or ART member is satisfied:
that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and
that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.
If the magistrate or ART member issues a monitoring warrant under section 268CZD, the magistrate or ART member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or ART member would have issued if the application had been made under section 268CD.
The magistrate or ART member must also:
inform the authorised officer of:
the terms of the warrant; and
the day and time when it was signed; and
the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and
record on the warrant the reasons for issuing it.
The authorised officer must:
complete a form of warrant in the terms given to the authorised officer by the magistrate or ART member; and
write on it the magistrate’s or ART member’s name and the day and time when the warrant was signed.
An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or ART member who signed the monitoring warrant:
the form of warrant completed by the authorised officer; and
the information duly sworn or affirmed in connection with the warrant.
The form of warrant and information must be sent by the end of the day after the earlier of:
the day on which the warrant ceases to have effect; or
the day on which the warrant is executed.
The magistrate or ART member must:
attach the monitoring warrant signed by the magistrate or ART member under section 268CZE to the form of warrant and information; and
deal with the documents in the same way that the magistrate or ART member would have dealt with them if the application for the warrant had been made under section 268CD.
The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.
A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant if the monitoring warrant signed by the magistrate or ART member under section 268CZE is not produced in evidence.
An authorized officer may, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:
by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or
in accordance with a form of security approved by the Minister.
The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:
the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and
the officer has indicated those conditions to the applicant.
A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.
Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.
If it appears to the court that a non-compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:
an extension of time or other concession;
any consent to, or acquiescence in, a previous non-compliance with a condition; or
any failure to bring suit against the subscribers upon the occurrence of a previous non-compliance with the condition.
Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report and:
if the report states that the member left the vessel with leave—that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or
if the report states that the member left the vessel without leave—that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port.
Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and:
at any time during the vessel’s stay at that port, left the vessel without leave; or
at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave;
the report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report.
In migration proceedings:
official documents of the Commonwealth or of a State or Territory, and letters and telegrams, or copies of letters and telegrams, and affidavits produced out of official custody and purporting to have been sent or made by an officer, are, if they contain information or statements upon matters relevant to the proceedings, admissible as evidence of that information or of the matters stated; and
a certificate signed by an officer stating that:
at a time, or during a period, specified in the certificate a specified person was, or was not, the holder of, a visa that was in effect; or
a specified visa was granted subject to specified conditions or to a specified limitation as to period;
is prima facie evidence of the matters stated in the certificate; and
the production out of official custody of a document purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is prima facie evidence that the document is such a report; and
a list of passengers in a vessel, or a passenger card relating to a passenger in a vessel, furnished in accordance with the regulations, is prima facie evidence that the person named on the list or card as the operator of the vessel is the operator of the vessel; and
a notation in a person’s passport specifying a proclaimed airport and date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person was immigration cleared on that date; and
a notation in a person’s passport to the effect that the person departed on a specified pre-cleared flight from a specified foreign country on a specified date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person entered Australia on that pre-cleared flight; and
for the purpose of proving that a person entered Australia on, or left Australia in, an aircraft (whether or not the person travelled to Australia on a pre-cleared flight), a certified printout of the relevant movement records is prima facie evidence of the matters contained in the printout; and
for the purpose of proving that a person entered Australia on, or left Australia on, a vessel, a list of any passengers on that vessel, or a passenger card relating to a passenger on that vessel, furnished in accordance with the regulations is admissible in evidence, and production of such a list or passenger card bearing a name that is the same as the name of that person shall be deemed to be proof that that person entered Australia on, or left Australia on, that vessel on the voyage in respect of which the list or passenger card was furnished, unless the contrary is proved; and
for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they:
are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and
purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia;
and any such certificate is prima facie evidence of the matters stated in the certificate; and
evidence that a person who travelled to and entered Australia on board a vessel, when entering, either:
failed to produce to an officer, upon demand by that officer, a passport; or
produced to an officer a passport that was not an Australian passport;
is prima facie evidence that the person was, when entering, a non-citizen; and
evidence that a non-citizen who entered Australia on board a vessel failed, when entering, to produce to an officer, upon demand by that officer, evidence of a visa:
that is in effect; and
that permits the non-citizen to travel to and enter Australia;
is prima facie evidence that the non-citizen did not, when entering, hold such a visa; and
a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:
at a specified time or during a specified period; and
in relation to specified outcomes from the operation of that program under an arrangement made under subsection 495A(1);
is prima facie evidence of the matters stated in the certificate; and
a certificate signed by an officer stating:
whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person; and
if the specified computer system was so used—the information about the other specified person that was provided by the system to the user at that time or during that period;
is prima facie evidence of the matters stated in the certificate.
Note: Functioning correctly is defined in subsection (5).
In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Territory of Christmas Island, as including official documents of that Territory that were in existence at the commencement of this subsection.
In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Coral Sea Islands Territory or the Territory of Cocos (Keeling) Islands, as including official documents of that Territory that were in existence at the commencement of this subsection.
In this section:
migration proceedings means:
proceedings in a court (including criminal proceedings):
under this Act, or in relation to an offence against this Act or a contravention of a civil penalty provision; or
in relation to a deportation order; or
proceedings in the ART for the review of a decision under this Act, including a decision to make a deportation order.
Note: For offence against this Act, see subsection 5(1).
(5) For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:
outcomes from its operation comply with this Act and the regulations; and
those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.
(1) The Minister may, on behalf of the Commonwealth, cause to be established and maintained premises and places (in this section referred to as migrant centres) for the reception, accommodation or training of non-citizens.
Non-citizens may be admitted to migrant centres in such circumstances, on such terms and conditions, and subject to the payment of such charges, as the Minister approves.
The regulations may make provision for and in relation to the regulation of migrant centres, including provision with respect to the establishment and operation of canteen services in migrant centres, the conduct or control of persons in migrant centres and the removal of persons from migrant centres.
Nothing in this section shall be deemed to affect any arrangements made or to be made in relation to, or the carrying on of the business of, the company known as Commonwealth Hostels Limited.
The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
The regulations may make provision in relation to the operation and regulation of detention centres.
Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
the conduct and supervision of detainees;
the powers of persons performing functions in connection with the supervision of detainees.
In this section:
detention centre means a centre for the detention of persons whose detention is authorised under this Act.
This section applies to a person who:
is a deportee who has not yet been deported; or
is a removee who has not yet been removed; or
has been refused immigration clearance and has not subsequently been immigration cleared.
Where the Secretary or Australian Border Force Commissioner thinks that the issue to a person of a document under subsection (3) relating to another person, being a person to whom this section applies, would facilitate the making of arrangements for the transportation, by aircraft, of the other person from Australia, the Secretary or Australian Border Force Commissioner may give the first-mentioned person a document under subsection (3) relating to the other person.
A document for the purposes of subsection (2):
must be in the approved form; and
must contain a photograph of the person concerned (if available); and
must state, to the best of the Secretary’s or Australian Border Force Commissioner’s knowledge, the name and nationality of the person concerned; and
may include such other information as the Secretary or Australian Border Force Commissioner thinks appropriate.
In this Part, unless the contrary intention appears:
Australian legal practitioner means a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory.
cancellation review applicant means an applicant for:
Note: For the meaning of lawyer, see subsection 5(1).
review of a decision to cancel a visa held by the applicant; or
revocation under section 137L of the cancellation of a visa held by the applicant; or
review of a decision under that section not to revoke such a cancellation.
cancellation review application means the application by the applicant.
client: see section 306C.
eligible: see section 278A.
eligible period: see section 278A.
immigration assistance: see section 276.
inactive migration agent: see section 306B.
legal practice means the provision of legal services regulated by a law of a State or Territory.
Migration Agents Registration Authority means the body mentioned in section 315.
migration procedure means the law, and administrative practice, relating to immigration.
official means:
Note: If a power or function is expressed to be given to the Migration Agents Registration Authority, it may only be exercised by the Minister, or by a delegate of the Minister under section 320 (see subsection 315(2)).
(a) a person appointed or engaged under the Public Service Act 1999; or
a member of the public service of a State or Territory; or
a member of the staff of a Parliamentarian.
parliamentarian means:
a Senator; or
a Member of the House of Representatives; or
a member of the Parliament of a State; or
a member of the Legislative Assembly of a Territory.
Register means the Register of Migration Agents kept under section 287.
registered migration agent means an individual registered as a migration agent under Division 3.
registration application means an application to be registered as a migration agent.
registration application fee means charge imposed by section 4 of the Migration Agents Registration Application Charge Act 1997 on a registration application.
registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.
related by employment: see section 278.
restricted: a practising certificate held by an Australian legal practitioner is restricted if:
it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and
such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.
Note: A practising certificate subject to a supervision condition of the kind mentioned in paragraph (a) is, however, taken to be unrestricted if the condition was imposed as a disciplinary measure as mentioned in paragraph (b) (see the definition of unrestricted in this section).
restricted legal practitioner means an Australian legal practitioner whose practising certificate is restricted (within the meaning of this Part).
unrestricted: a practising certificate held by an Australian legal practitioner is unrestricted if it is not restricted (within the meaning of this Part).
unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted (within the meaning of this Part).
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
preparing, or helping to prepare, the visa application or cancellation review application; or
advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
preparing for proceedings before a court or the ART in relation to the visa application or cancellation review application; or
representing the visa applicant or cancellation review applicant in proceedings before a court or the ART in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
representing the other person in proceedings before a court or the ART that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351 or 501J in respect of a decision (whether or not the decision relates to the other person); or
preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or
advising the other person about making a request referred to in paragraph (a) or (aa).
(2B) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
preparing, or helping to prepare, a representation to the Minister to exercise the Minister’s power:
under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to the other person); or
under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to the other person); or
advising the other person about making a representation mentioned in paragraph (a).
Note: Sections 501C and 501CA provide for the revocation of decisions to refuse or cancel visas on character grounds.
Despite subsections (1), (2), (2A) and (2B), a person does not give immigration assistance if he or she merely:
does clerical work to prepare (or help prepare) an application or other document; or
provides translation or interpretation services to help prepare an application or other document; or
advises another person that the other person must apply for a visa; or
passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
A person also does not give immigration assistance in the circumstances prescribed by the regulations.
(1) For the purposes of this Part, an individual is related by employment to another individual if:
one individual is an employee of the other; or
they are executive officers of the same corporation; or
they are members of the same partnership; or
one individual is an employee of a corporation and the other is:
an employee of the corporation; or
an executive officer of the corporation; or
one individual is an employee of a partnership and the other is:
an employee of the partnership; or
a member of the partnership.
Regulations
(2) For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.
Expanded meaning of employee
In this section:
employee includes a person engaged as a consultant or as an independent contractor.
Eligibility—general
(1) A person who is a restricted legal practitioner is eligible, subject to this section.
(2) The person remains eligible until the earliest of the following times:
the end of the eligible period, or of a longer period as extended under this section;
when the person becomes an unrestricted legal practitioner.
Note 1: A person may be eligible whether or not the person is a registered migration agent at the time of becoming a restricted legal practitioner.
Note 2: While a restricted legal practitioner is eligible, the practitioner may become, or continue to be, a registered migration agent (see sections 289B and 302A). However, to be registered as a migration agent, an eligible restricted legal practitioner must also satisfy the requirements of section 289A, including completing a prescribed course and passing a prescribed exam.
(3) The eligible period is the period of 2 years after the person first held a restricted practising certificate.
Note: However, the eligible period for a person who was a restricted legal practitioner immediately before Division 8 commences (which is also when this section commences) is 2 years after that commencement: see section 333C.
Extension of eligible period
An eligible person may apply to the Migration Agents Registration Authority for an extension of the eligible period for a period of up to 2 years:
in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and
if the application is made 3 months or more before the end of the eligible period.
Note: An eligible person may apply for an extension under this subsection whether or not the person is a registered migration agent at the time of the extension application.
A person may make no more than one application for extension under subsection (4).
On an application under subsection (4), the Authority must, by written notice given to the applicant no later than 28 days before the end of the eligible period:
extend the eligible period by a stated period of no more than 2 years; or
refuse to extend the eligible period.
The Authority may extend the eligible period by a particular period only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) any circumstances determined under subsection (9).
The notice of the decision must include any details determined under subsection (9) in relation to the decision.
The Minister may, by legislative instrument, make a determination for the purposes of subsection (7) or (8).
Review by ART
An application may be made to the ART for review of a decision by the Authority:
under paragraph (6)(a), to extend the eligible period by a particular stated period; or
under paragraph (6)(b), to refuse to extend the eligible period.
Note: The ART Act requires that reasonable steps be taken to notify people whose interests are affected by reviewable decisions of the Authority of their rights to seek review of the decision.
Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.
Subject to this section, a person who is not a registered migration agent must not give immigration assistance.
Penalty: 60 penalty units.
Note: See also paragraph 504(1)(ja) (which deals with the payment of penalties as an alternative to prosecution).
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
This section does not prohibit a parliamentarian from giving immigration assistance.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit an Australian legal practitioner from giving immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prevent a close family member of a person from giving immigration assistance to the person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
a member of a diplomatic mission; or
a member of a consular post; or
a member of an office of an international organisation.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
In this section:
close family member has the meaning given by the regulations.
member of a consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.
member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.
member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act.
Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.
Penalty: Imprisonment for 10 years.
Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.
Penalty: Imprisonment for 10 years.
This section does not prohibit:
an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or
a person from asking for or receiving a fee or other reward for the giving of immigration assistance by an Australian legal practitioner in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).
Subject to subsection (2A), a person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.
Penalty: Imprisonment for 10 years.
Subject to subsection (2A), a person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered migration agent.
Penalty: Imprisonment for 10 years.
This section does not prohibit:
an Australian legal practitioner from asking for or receiving a fee or other reward for making immigration representations in connection with legal practice; or
a person from asking for or receiving a fee or other reward for the making of immigration representations by an Australian legal practitioner in connection with legal practice.
A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).
(4) For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:
on behalf of a visa applicant about the application for the visa; or
on behalf of a cancellation review applicant about the cancellation review application; or
on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or
on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or
on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351 or 501J in respect of a decision (whether or not the decision relates to that person), about the request; or
on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person), about the request; or
on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person); or
on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to that person).
A person does not make immigration representations in the circumstances prescribed by the regulations.
A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent.
A person must not directly or indirectly represent that another person who is not a registered migration agent is such an agent.
Penalty: Imprisonment for 2 years.
Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance.
Penalty: Imprisonment for 2 years.
This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit an Australian legal practitioner from advertising that the practitioner gives immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Subject to this section, a person must not directly or indirectly advertise that another person who is not a registered migration agent gives immigration assistance.
Penalty: Imprisonment for 2 years.
This section does not prohibit a person from advertising that another person who is a parliamentarian gives immigration assistance.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit a person from advertising that another person who is an Australian legal practitioner gives immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
This section does not prohibit a person from advertising that another person who is an official gives immigration assistance in the course of the official acting as an official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
The Migration Agents Registration Authority must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.
The Register is to show in respect of each registered migration agent:
the agent’s full name; and
any business names of the agent or the agent’s employer; and
a business address for the agent; and
a telephone number for contacting the agent; and
the date on which the agent was registered most recently; and
particulars of any suspension of the agent’s registration; and
particulars of any caution given to the agent; and
particulars of any other prescribed matter.
The Migration Agents Registration Authority must keep records to show:
what was in the Register from time to time; and
particulars of any cancellation or suspension of a registered migration agent’s registration or of any caution given to such an agent.
The Authority may publish, in the prescribed way, a list of the names of former registered migration agents, their former migration agent registration numbers and the date they ceased to be registered. The Authority must remove a person’s details from the list at the end of the prescribed period.
The Migration Agents Registration Authority must make the Register available, in a suitable form and at reasonable times, for inspection by any person.
Removal of disciplinary details
The Authority must remove from the Register the following details:
particulars of any suspension of a registered migration agent’s registration (if the suspension is no longer in effect);
particulars of any caution given to such an agent (if the caution is no longer in effect).
Time for removal
The Authority must remove the details within the period worked out in accordance with the regulations.
The regulations may prescribe different periods in relation to details about suspensions or cautions.
An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.
Publishing requirement
The individual must satisfy 1 of 2 publishing options set out in section 288A, unless the individual has been registered at some time within the period, immediately before making the application, that is prescribed for the purposes of this subsection.
Form of application
A registration application is to be in a form approved in writing by the Authority and contain such information relevant to the application as is required by the form.
Note: The applicant may be required to make a statutory declaration, or to answer questions, in relation to the application: see section 288B.
Time of application
The day on which a registration application is taken to have been made is the day worked out in accordance with the regulations.
Registration application fee
The Authority must not consider a registration application unless the applicant has paid the registration application fee (if any) on the application.
Evidence of publication
If the applicant is required under this section to satisfy 1 of 2 publishing options, the Authority must not consider the application unless the applicant has:
satisfied one of those options; and
given the Authority evidence of the publication concerned.
Proceedings finalised about previous registration
If:
the applicant has been registered at some time before making the application; and
the Authority made a decision to suspend or cancel the applicant’s registration; and
(c) the applicant made an application (the review application) for review of the decision under the ART Act or for judicial review of the decision;
then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.
Withdrawal of application
The applicant may withdraw an application by giving notice in writing to the Authority. However, the applicant is not entitled to a refund of the registration application fee paid in relation to the application.
For the purposes of subsection 288(2), this section sets out an individual’s 2 publishing options.
Individual publication
The first option is for the individual to publish in the prescribed way a notice:
stating his or her intention to apply for registration; and
stating that anyone may give the Migration Agents Registration Authority a written objection to his or her registration within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).
Joint publication
The second option is for the individual and one or more other individuals, who are all employees of the same employer and who all intend to apply for registration, to publish in the prescribed way a single notice:
stating their intention to apply for registration; and
stating that anyone may give the Migration Agents Registration Authority a written objection to registration of any one or more of them within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).
Scope
This section applies in relation to an applicant who, on the day the registration application is taken to have been made, is not a registered migration agent.
Notice to provide further information etc.
The Migration Agents Registration Authority may, by written notice given to the applicant, require the applicant to provide information in relation to the application, that is stated in the notice, by doing either of the following:
providing to the Authority, within a period prescribed for the purposes of this paragraph (or that period as extended under subsection (5)) and stated in the notice:
a statutory declaration; and
any other specified documents;
appearing before the Authority, at a time and place stated in the notice (or at another time or place fixed under subsection (5)), and providing such information, with any specified documents, at such an appearance.
Refusal of application if applicant does not comply with notice
The Authority may consider refusing the application if the applicant fails to comply with a requirement in the notice under subsection (2).
Note: If the Authority is considering refusing a registration application, it must invite the applicant to make a further submission in support of the application (see subsection 309(1)).
An applicant must not be registered if:
the applicant has failed to comply with a requirement of a notice under subsection (2):
within the period to which paragraph (2)(a) applies; or
at the time to which paragraph (2)(b) applies; and
the Authority has invited the applicant to make a further submission under subsection 309(1) in relation to the information required by the notice under subsection (2); and
any of the following applies:
the applicant fails to make such a further submission within a reasonable time after the invitation is given;
if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)—the applicant fails to appear before the Authority;
the Authority is not satisfied that the applicant has provided the information required by the notice under subsection (2) of this section after consideration of such a further submission, and (if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)) any information given by the applicant at such an appearance.
Other matters
The Authority may, by written notice given to the applicant:
upon a request of the applicant made within the period to which paragraph (2)(a) applies, extend the period; or
upon a request of the applicant made before the time to which paragraph (2)(b) applies, fix a new time or place for the applicant to appear before the Authority.
A notice under subsection (2) must include a statement explaining the consequences under this section of failing to comply with the requirements of the notice.
The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant.
Note: If the Migration Agents Registration Authority is considering refusing a registration application, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.
The Migration Agents Registration Authority must do so as soon as possible.
However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:
the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and
the Authority must consider any objection received within that time when deciding whether to register the applicant.
This section applies to an applicant:
who has never been registered; or
whose registration application is made after the end of a period, prescribed for the purposes of this paragraph, immediately after the end of the applicant’s most recent period of registration.
The applicant must not be registered unless the Migration Agents Registration Authority is satisfied that the applicant has:
completed a course prescribed for the purposes of this paragraph; and
passed an examination, prescribed for the purposes of this paragraph, within a prescribed period before the date of the registration application.
An applicant who is an unrestricted legal practitioner must not be registered.
An applicant who is a restricted legal practitioner must not be registered unless the applicant is eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible (see section 302A).
An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
the applicant is not a fit and proper person to give immigration assistance; or
the applicant is not a person of integrity; or
the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
the extent of the applicant’s knowledge of migration procedure; and
any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
a fit and proper person to give immigration assistance; or
a person of integrity;
(except a conviction that is spent under Crimes Act 1914); andPart VIIC of the
any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
any bankruptcy (present or past) of the applicant; and
any other matter relevant to the applicant’s fitness to give immigration assistance.
In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:
(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Crimes Act 1914);Part VIIC of the
any criminal proceedings that the individual is the subject of;
any inquiry or investigation that the individual is or has been the subject of;
any disciplinary action that is being taken, or has been taken, against the individual;
any bankruptcy (present or past) of the individual.
To avoid doubt, this section applies to all applicants (not just first time applicants).
This section applies in relation to an applicant who has been registered at some time within the period, immediately before making the registration application, that is prescribed for the purposes of this subsection.
The applicant must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the period prescribed for the purposes of this subsection, the prescribed requirements for continuing professional development of registered migration agents.
An applicant must not be registered if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.
An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application.
To avoid doubt, this section applies to all applicants (not just first time applicants).
If:
(a) an applicant has been registered (the previous registration) at some time before making the application; and
the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and
the previous registration ended on or after the suspension decision;
then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.
Example 1: A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re-registered until the suspension period ends.
Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re-registered until the review proceedings are finalised. The agent cannot be re-registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).
Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re-registered until the agent complies with the condition.
An applicant whose registration has been cancelled under section 303 must not be registered within 5 years of the cancellation.
An applicant must not be registered if:
the Migration Agents Registration Authority has made a decision under subsection 311A(1) to bar him or her from being a registered migration agent for a particular period; and
the period has not ended.
An applicant must not be registered unless the Migration Agents Registration Authority is satisfied that he or she has professional indemnity insurance of a kind prescribed by the regulations.
To avoid doubt, this section applies to all applicants (not just first time applicants).
An applicant must not be registered if he or she is under 18.
An applicant must not be registered unless he or she is:
an Australian citizen; or
an Australian permanent resident (within the meaning of the regulations); or
a New Zealand citizen who holds a special category visa.
To avoid doubt, this section applies to all applicants (not just first time applicants).
If the Migration Agents Registration Authority decides not to register an applicant, the Authority must give the applicant written notice of the decision and of the reasons for it.
Note: The applicant may apply to the ART for review of the decision: see the Authority’s decision of their rights to seek review of the decision.section 306 of this Act. The ART Act requires that reasonable steps be taken to notify people whose interests are affected by
Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.
When agent’s registration is automatically continued
(1) Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:
the agent made a registration application; and
the agent paid the registration application fee (if any) in respect of the application; and
the Migration Agents Registration Authority had not decided the application.
Exception—suspension
However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:
the suspension had been completed before the end of the expiry day; or
there was a decision (other than a stay order) of the ART or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.
Exception—cancellation
Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:
there was a decision (other than a stay order) of the ART or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
there was a decision of the ART or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.
Period of continuation of registration
The agent’s registration is taken to continue after the expiry day until the earliest of the following:
the Authority decides the application;
the Authority decides to suspend the agent’s registration;
the Authority decides to cancel the agent’s registration;
the end of the period of 10 months beginning on the day after the expiry day.
Application granted if no decision within a certain period
If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
decided the registration application; and
decided to suspend the agent’s registration; and
decided to cancel the agent’s registration;
then the application is taken to have been granted at the end of that period.
When registration takes effect
If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.
Example: An agent’s registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.
The agent’s registration continues automatically past 31 October until the Authority decides the application.
On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.
When Authority makes decision
For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.
At least 30 days before the period for which a registered migration agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.
The Migration Agents Registration Authority must deregister a registered migration agent by removing his or her name from the Register if:
he or she requests the Authority, in writing, to do so; or
he or she dies.
The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing the agent’s name from the Register, if the Authority is satisfied:
that the agent is an unrestricted legal practitioner; or
that the agent is a restricted legal practitioner who is not eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: An unrestricted legal practitioner, or a restricted legal practitioner other than an eligible restricted legal practitioner, cannot be registered as a migration agent (see section 289B).
The Authority may cancel the registration of a registered migration agent under subsection (1) because of the status of the agent as an Australian legal practitioner only on the basis of a document authorised by a body authorised to grant practising certificates to Australian legal practitioners in the relevant State or Territory.
The Authority must give a registered migration agent written notice of a decision to cancel the agent’s registration under subsection (1).
The notice must set out the reason for the decision.
The decision takes effect at the time the agent is given written notice of it.
Note: Section 332H sets out when the agent is taken to have been given the notice.
The Migration Agents Registration Authority may:
cancel the registration of a registered migration agent by removing his or her name from the register; or
suspend his or her registration; or
caution him or her;
if it becomes satisfied that:
the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
the agent becomes bankrupt; or
the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
an individual related by employment to the agent is not a person of integrity; or
the agent has not complied with the Code of Conduct prescribed under section 314.
Note: If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.
Unpaid registration status charge
The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.
If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
set a period of suspension of not more than 5 years; or
set a condition or conditions for the lifting of the suspension.
If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.
The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.
Note: Particulars of cautions are shown on the Register: see section 287.
Notice to agent
The Migration Agents Registration Authority must give a registered migration agent written notice of a decision made under section 303 in relation to the agent.
The notice must set out the reasons for the decision.
When decision takes effect
The decision takes effect at the time the agent is given written notice of it.
Note: Section 332H sets out when the agent is taken to have been given the notice.
If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:
must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and
may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.
This subsection applies even if a stay order is made in relation to the decision.
Content of statement
A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.
Protection from civil proceedings
No action or other proceeding for damages lies against a person for publishing in good faith:
a copy of; or
an extract from; or
a summary of;
a statement under this section.
If the Migration Agents Registration Authority makes a decision under the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:section 303 in relation to a registered migration agent,
the making of the decision;
whether or not the agent has applied for review of the decision;
the status of any such review.
This section applies if the Migration Agents Registration Authority is considering:
refusing a registration application from a registered migration agent; or
making a decision under section 303 to cancel or suspend such an agent’s registration or to caution such an agent.
The Authority may, by written notice given to the agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.
A period specified in a notice under this section must end at least 14 days after the notice was given.
Note: Section 332H sets out when the agent is taken to have been given the notice.
Offence
A person commits an offence if:
the person is subject to a requirement under this section; and
the person contravenes the requirement.
Penalty: 60 penalty units.
An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Self-incrimination
A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
However:
any information or document provided in response to a requirement under subsection (2); and
any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against Criminal Code that relates to this Act or the regulations).section 137.1 or 137.2 of the
Subject to the ART Act, an application may be made to the ART for review of a decision by the Migration Agents Registration Authority made under this Division.
If the ART or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.
The objects of this Division are:
to ensure that clients of inactive migration agents are not unduly disadvantaged by the agent becoming inactive; and
to ensure that clients of deceased migration agents are not unduly disadvantaged by the death of the agent;
by empowering the Migration Agents Registration Authority to:
obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and
give the originals or copies to the clients concerned.
Note: For when an agent becomes inactive, see section 306B.
For the purposes of this Division:
if a person ceases to be a registered migration agent because the person’s period of registration expires under section 299:
(i) the person becomes an inactive migration agent at the time of the cessation; and
the person remains an inactive migration agent until the end of the period of 2 years after the cessation or until the person again becomes a registered migration agent, whichever happens first; and
if, at a person’s request, the Migration Agents Registration Authority deregisters the person under section 302:
(i) the person becomes an inactive migration agent at the time of the deregistration; and
the person remains an inactive migration agent until the end of the period of 2 years after the deregistration or until the person again becomes a registered migration agent, whichever happens first; and
if a person ceases to be a registered migration agent because the Migration Agents Registration Authority cancels the person’s registration under section 302A, or because the person’s registration ends under section 333B:
(i) the person becomes an inactive migration agent at the time of the cessation of the registration; and
the person remains an inactive migration agent until the end of the period of 2 years after the cessation, or until the person again becomes a registered migration agent, whichever happens first; and
Note 1: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or that of an agent who is a restricted legal practitioner, but is not eligible (see section 302A).
Note 2: Section 333B provides that the registration of an unrestricted legal practitioner as a migration agent ends when Division 8 commences (which is also when this paragraph commences).
if the Migration Agents Registration Authority cancels a person’s registration under section 303:
(i) the person becomes an inactive migration agent at the time of the cancellation; and
the person remains an inactive migration agent for 2 years; and
if the Migration Agents Registration Authority suspends a person’s registration under section 303:
(i) the person becomes an inactive migration agent at the time of the suspension; and
the person remains an inactive migration agent for the period of the suspension; and
if, while a person is a registered migration agent, the person becomes physically or mentally incapable, for a continuous period of not less than 14 days, of giving immigration assistance:
(i) the person becomes an inactive migration agent at the end of that period of 14 days; and
the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.
(1) A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.
In addition:
(a) if a registered migration agent becomes an inactive migration agent, a client of the registered migration agent (while the agent was registered) remains a client of the inactive migration agent; and
(b) a person remains a client of a registered migration agent, or an inactive migration agent, even if the agent is deceased.
This section applies to a person who is an inactive migration agent if the Migration Agents Registration Authority has reason to believe that:
before becoming an inactive migration agent and while the person was a registered migration agent, the person gave, or anticipated giving, immigration assistance to one or more clients; and
the inactive migration agent has in his or her possession or control documents that:
are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
relate to the affairs of those clients.
The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:
to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or
to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the agent by, or on behalf of, those clients.
Note: An example of a document provided to a registered migration agent is a client’s passport.
A notice under subsection (2) must set out the effect of sections 306G and 306H.
A notice under subsection (2) need not identify any particular client or clients.
A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.
Note: Section 332H sets out when the inactive migration agent is taken to have been given the notice.
This section applies to the legal personal representative of a deceased person if the deceased person was an inactive migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:
before becoming an inactive migration agent and while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and
the legal personal representative has in his or her possession or control documents that:
are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
relate to the affairs of those clients.
The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:
to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or
to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.
Note: An example of a document provided to a registered migration agent is a client’s passport.
A notice under subsection (2) must set out the effect of sections 306G and 306H.
A notice under subsection (2) need not identify any particular client or clients.
A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.
Note: Section 332H sets out when the legal personal representative is taken to have been given the notice.
This section applies to the legal personal representative of a deceased person if the deceased person was a registered migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:
while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and
the legal personal representative has in his or her possession or control documents that:
are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
relate to the affairs of those clients.
The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:
to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or
to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.
Note: An example of a document provided to a registered migration agent is a client’s passport.
A notice under subsection (2) must set out the effect of sections 306G and 306H.
A notice under subsection (2) need not identify any particular client or clients.
A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.
Note: Section 332H sets out when the legal personal representative is taken to have been given the notice.
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a notice under section 306D, 306E or 306F.
A person commits an offence if:
the person is subject to a requirement under section 306D, 306E or 306F; and
the person contravenes the requirement.
Penalty: 60 penalty units.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
An individual is not excused from producing a document under section 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.
However:
any document so produced; and
any information or thing (including any document) obtained as a direct or indirect result of a document so produced;
is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence against Criminal Code that relates to this Act or the regulations).section 137.1 or 137.2 of the
If:
a document is given to the Migration Agents Registration Authority under section 306D by an inactive migration agent; and
the document relates to the affairs of a particular client of the inactive migration agent;
then, as soon as practicable, the Migration Agents Registration Authority must:
give the document to:
the client; or
if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and
give the client information about how to contact other registered migration agents.
If:
a document is given to the Migration Agents Registration Authority under section 306E or 306F by the legal personal representative of:
a deceased inactive migration agent; or
a deceased registered migration agent; and
the document relates to the affairs of a particular client of the deceased migration agent;
then, as soon as practicable, the Migration Agents Registration Authority must:
give the document to:
the client; or
if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and
give the client information about how to contact other registered migration agents.
If:
apart from this section, the operation of this Division would result in the acquisition of property from a person otherwise than on just terms; and
the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
A provision of this Act (other than this Division) that provides for compensation for the acquisition of property does not apply to this Division.
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
The Migration Agents Registration Authority may require a registered migration agent:
to make a statutory declaration in answer to questions in writing by the Authority; or
to appear before an individual or individuals specified by the Authority and to answer questions; or
to provide the Authority with specified documents or records relevant to the agent’s continued registration.
If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.
If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.
A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
However:
any information or document provided in response to a requirement under subsection (1); and
any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against Criminal Code that relates to this Act or the regulations).section 137.1 or 137.2 of the
If the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.
If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.
In this section:
submission means:
a statutory declaration; or
a written argument.
This section applies where the Migration Agents Registration Authority has invited a submission on a matter under section 309.
If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it.
If the Migration Agents Registration Authority receives a submission, it may:
decide the matter; or
give the person who made the submission the opportunity to appear before it and then decide the matter.
The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary action under section 303:
is not bound by technicalities, legal forms or rules of evidence; and
must act according to substantial justice and the merits of the case.
The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.
Note: Before making such a decision, the Authority must invite the former registered migration agent to make a submission: see section 311D.
The period must not be more than 5 years starting on the day of the Authority’s decision.
Notice to former agent
The Migration Agents Registration Authority must give a former registered migration agent written notice of a decision made under section 311A in relation to the former agent.
The notice must set out the reasons for the decision and the period that the former agent is barred from being a registered migration agent.
When decision takes effect
The decision takes effect at the time the former agent is given written notice of it.
Note: Section 332H sets out when the former agent is taken to have been given the notice.
If a former registered migration agent is given notice of a decision under section 311A, then the Migration Agents Registration Authority:
must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and
may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.
This subsection applies even if a stay order is made in relation to the decision.
Content of statement
A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.
Protection from civil proceedings
No action or other proceeding for damages lies against a person for publishing in good faith:
a copy of; or
an extract from; or
a summary of;
a statement under this section.
Invitation to make submission
Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:
stating that the Authority proposes to make such a decision and the reasons for it; and
inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.
Note: Section 332H sets out when the former agent is taken to have been given the notice.
Authority to consider any submission
The Authority must consider any written submission received within that period.
No submission received
If the Authority does not receive a written submission, it may decide the matter on the information before it.
Submission received
If the Authority receives a written submission, it may:
decide the matter; or
give the former registered migration agent the opportunity to appear before it and then decide the matter.
In considering making a decision under subsection 311A(1), the Migration Agents Registration Authority:
is not bound by technicalities, legal forms or rules of evidence; and
must act according to substantial justice and the merits of the case.
This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.
The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.
A period specified in a notice under this section must end at least 14 days after the notice was given.
Note: Section 332H sets out when the former agent is taken to have been given the notice.
Offence
A person commits an offence if:
the person is subject to a requirement under this section; and
the person contravenes the requirement.
Penalty: 60 penalty units.
An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Self-incrimination
A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
However:
any information or document provided in response to a requirement under subsection (2); and
any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against Criminal Code that relates to this Act or the regulations).section 137.1 or 137.2 of the
Subject to the ART Act, an application may be made to the ART for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).
A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:
he or she becomes bankrupt;
he or she applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
he or she compounds with his or her creditors;
he or she makes an assignment of remuneration for the benefit of his or her creditors;
he or she is convicted of an offence under a law of the Commonwealth or of a State or Territory;
if the agent paid the non-commercial application charge in relation to the agent’s current period of registration—the agent begins to give immigration assistance otherwise than on a non-commercial basis during that period;
he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;
he or she becomes a member of a partnership and will give immigration assistance in that capacity;
if he or she is a member or an employee of a partnership and gives immigration assistance in that capacity—a member of the partnership becomes bankrupt;
if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:
a receiver of its property or part of its property is appointed; or
it begins to be wound up.
Penalty: 100 penalty units.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The following terms used in paragraph (1)(ea) have the same meaning as in the Migration Agents Registration Application Charge Act 1997:
(a) begins (in relation to immigration assistance given otherwise than on a non-commercial basis);
(b) non-commercial application charge;
(c) non-commercial basis (in relation to the basis on which immigration assistance is given).
A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after the agent becomes:
a restricted legal practitioner; or
an unrestricted legal practitioner.
Penalty: 100 penalty units.
An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
If:
a registered migration agent gives immigration assistance to a visa applicant in relation to the visa application; and
the agent gives the assistance after having agreed to represent the applicant;
the agent must notify the Department in accordance with the regulations and within the period worked out in accordance with the regulations.
Penalty: 60 penalty units.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
If:
a registered migration agent gives immigration assistance to a person in respect of a review application made by the person; and
the agent gives the assistance after having agreed to represent the person;
the agent must notify the ART in accordance with the regulations and within the period worked out in accordance with the regulations.
Penalty: 60 penalty units.
An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
In this section:
review application means an application for review by the ART of a decision to refuse to grant a person a visa.
(1) A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services.
A statement of services must set out:
particulars of each service performed; and
the charge made in respect of each such service.
An assisted person may recover the amount of a payment as a debt due to him or her if he or she:
made the payment to a registered migration agent for giving immigration assistance; and
did not receive a statement of services before making the payment; and
does not receive a statement of services within the period worked out in accordance with the regulations.
The regulations may prescribe a Code of Conduct for migration agents.
A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
The Migration Agents Registration Authority is the body established within the Department to administer this Part.
A power or function expressed under this Part to be given to the Migration Agents Registration Authority may only be exercised or performed by the Minister, or by a delegate of the Minister under section 320.
The functions of the Migration Agents Registration Authority are:
to deal with registration applications in accordance with this Part; and
to monitor the conduct of registered migration agents in their provision of immigration assistance; and
to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
to take appropriate disciplinary action against registered migration agents or former registered migration agents; and
to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
to monitor the adequacy of any Code of Conduct; and
such other functions as are conferred on the Authority by this Part.
In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.
However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.
The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.
If the Migration Agents Registration Authority is investigating a complaint about a person who is or was a registered migration agent, the Authority may refer the complainant and the person to a mediator to resolve the matter complained of.
Referral generally
The Migration Agents Registration Authority may refer the conduct of a registered migration agent, or a former registered migration agent, who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory if:
the legal practitioner was granted a practising certificate under the law of that State or Territory; and
the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.
Conduct of registered migration agents
If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.
Note: Section 303 allows the Migration Agents Registration Authority to caution a registered migration agent or suspend or cancel a registered migration agent’s registration.
Conduct of former registered migration agents
If the Migration Agents Registration Authority refers the conduct of a former registered migration agent, it may not take action against him or her under subsection 311A(1) on the basis of that conduct.
Note: Subsection 311A(1) allows the Authority to bar a former registered migration agent from being a registered migration agent for a period of not more than 5 years starting on the day of its decision.
The Minister may delegate any of the powers or functions given to the Migration Agents Registration Authority under this Part to an APS employee in the Department.
Note: See section 315 (Migration Agents Registration Authority—nature, powers and functions).
A delegation must be in writing signed by the Minister.
If the Minister delegates a power or function of the Migration Agents Registration Authority, the Minister may disclose to the delegate personal information to help the delegate exercise the power or perform the function.
(1) The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient):
the Secretary or an authorised officer;
the ART.
However, the Authority may do so only in the prescribed circumstances.
The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).
When charge due and payable
Registration status charge is due and payable at the time worked out in accordance with a determination made, by legislative instrument, by the Migration Agents Registration Authority.
Recovery of charge
Registration status charge that has become due for payment may be recovered by the Migration Agents Registration Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.
The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:
any statement relating to the cancellation or suspension of a registered migration agent’s registration;
any statement about the cautioning of such an agent.
Time for removal
The Authority must remove the details within the period worked out in accordance with the regulations.
The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.
The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C.
The Authority must remove the statement within the period worked out in accordance with the regulations.
Complaints about registered migration agents
No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;
the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.
Complaints about persons who are not registered migration agents
No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;
the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;
the investigation of such a complaint.
Institute etc.
The Migration Institute of Australia Limited (ACN 003 409 390), or an officer or employee of that Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:
the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;
the exercise or purported exercise of any power conferred on the Authority under this Part.
Note: The Institute was appointed as the Migration Agents Registration Authority by instrument dated 21 March 1998, under section 315 as then in force. That instrument was revoked on 30 June 2009.
Commonwealth etc.
None of the following:
the Commonwealth;
the Minister;
an officer;
any other person;
is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:
the performance or purported performance of any function conferred on the Minister under this Part;
the exercise or purported exercise of any power conferred on the Minister under this Part.
The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to the ART.
However, the Secretary may do so only in the prescribed circumstances.
The regulations may prescribe circumstances in which the ART may use or disclose personal information disclosed under subsection (1).
Discretionary disclosure
The ART may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.
However, the ART may do so only in the prescribed circumstances.
The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).
Mandatory disclosure
If a registered migration agent notifies the ART that the agent has given immigration assistance to a person in respect of a review application made by the person, the ART must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.
Definitions
In this section:
inactive migration agent has the meaning given by section 306B.
review application means an application for review by the ART of a decision to refuse to grant a person a visa.
(1) If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):
the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and
the time at which the recipient is taken to have been given the notice is the time set out in the table.
(2) This section has effect despite any provision in the Electronic Transactions Act 1999.
In this Division:
amending Act means the Migration Amendment (Regulation of Migration Agents) Act 2020.
Division 8 commencement day means the day this Division commences.
Note: This Division was added by Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Act 2020.
Despite the amendments of Division 2 made by Schedule 1 to the amending Act, that Division, as in force immediately before the Division 8 commencement day, continues to apply in relation to any conduct of a person occurring before that day.
Subsection (1) also applies in relation to any conduct of a person occurring on or after the Division 8 commencement day if the conduct is a part or continuation of, or is connected to, conduct of the person occurring before that day.
Scope
This section applies in relation to a person who, immediately before the Division 8 commencement day, was both:
a registered migration agent (even if, at that time, the person’s registration was under suspension, or had been taken to continue under subsection 300(4)); and
an unrestricted legal practitioner.
End of registration
The person’s registration as a migration agent ends at the start of the Division 8 commencement day, by force of this section.
Scope
This section applies in relation to a person who was a restricted legal practitioner immediately before the Division 8 commencement day (whether or not the person was a registered migration agent at that time).
Eligibility under section 278A
(2) The person’s eligible period for the purposes of section 278A is the period of 2 years after the Division 8 commencement day, despite subsection 278A(3).
Note: Subsection 278A(3) provides that generally the eligible period is the period of 2 years after the person first held a restricted practising certificate.
Scope
This section applies in relation to a person if, immediately before the Division 8 commencement day:
the person had made a registration application (whether or not the person had previously been registered as a migration agent); and
the Migration Agents Registration Authority had not made a decision in relation to the application.
Application of amendments to registration applications
The amendments of Division 3 made by Schedule 1 to the amending Act apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.
Note: On and after the Division 8 commencement day, some Australian legal practitioners cannot be registered as migration agents (see section 289B).
If the person was an unrestricted legal practitioner immediately before the Division 8 commencement day, section 300 (automatic continuation of registration) does not apply on and after that day in relation to the registration application.
Note: If the registration had been taken to continue under subsection 300(4) before the Division 8 commencement day, the registration would end at the start of that day (see section 333B).
Despite section 291 (applicant must not be registered if registration refused in past year), if the person’s registration application is refused because of section 289B (inserted by Schedule 1 to the amending Act), the refusal of the application does not prevent the person from being registered as a migration agent in accordance with a later registration application made at any time on or after the Division 8 commencement day.
Subsection 312(4) (added by Schedule 1 to the amending Act) applies to require a registered migration agent to notify the Migration Agents Registration Authority that the agent has become a restricted or unrestricted legal practitioner if the agent becomes such a practitioner on or after the Division 8 commencement day.
A person commits an offence if:
the person makes a statement; and
the statement is about:
the person’s ability or power; or
another person’s ability or power;
to induce or influence the making of decisions, or of a particular decision, under this Act; and
the statement is false or misleading.
A person commits an offence if:
the person makes a statement; and
the statement is about the effect of:
the person’s actions; or
another person’s actions;
on the making of a decision under this Act; and
the statement is false or misleading.
Penalty: Imprisonment for 2 years.
A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.
Penalty: Imprisonment for 2 years.
Where:
a person is convicted by a court of an offence against this Part; and
because of that offence, another person has suffered loss;
the court may, in addition to any penalty imposed on the offender, order the offender to make to the other person such reparation (whether by payment of money or otherwise) as the court thinks fit.
Where:
a court makes an order for the making of reparation by payment of an amount of money; and
the clerk, or other appropriate officer, of the court signs a certificate specifying:
the amount ordered to be paid; and
the person by whom the amount is to be paid; and
the person to whom the amount is to be paid; and
the certificate is filed in a court having civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.
The court may not, under subsection (1), order reparation in respect of an amount paid by a person if that amount has been recovered by the person under section 313.
If an amount paid by a person could be recovered by the person under section 313, the following provisions apply:
if, under subsection (1), a court orders the person to whom the amount was paid to make reparation to the first person, the court must state in the order whether the reparation ordered includes reparation for the amount paid;
if a court states in an order under subsection (1) that the reparation ordered is or includes reparation for the amount paid, the amount is not recoverable under section 313.
In this Part:
data base means a discrete body of information stored by electronic means, containing: indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and their identifying information. destroy, in relation to identifying information, has the meaning given by subsection 336K(4). disclose, in relation to identifying information that is a personal identifier referred to in paragraph (a) of the definition of identifying information in this section, includes provide unauthorised access to the personal identifier.
indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and
their identifying information.
destroy, in relation to identifying information, has the meaning given by subsection 336K(4).
disclose, in relation to identifying information that is a personal identifier referred to in paragraph (a) of the definition of identifying information in this section, includes provide unauthorised access to the personal identifier.
identifying information means the following: any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3); any meaningful identifier derived from any such personal identifier; any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier; any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
Note: Section 336D deals with authorised access to identifying information.
any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);
any meaningful identifier derived from any such personal identifier;
any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
permitted disclosure has the meaning given by subsections 336E(2) and (3).
unauthorised impairment has the meaning given by section 336J.
unauthorised modification has the meaning given by section 336J.
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.
A person commits an offence if:
the person accesses identifying information; and
the person is not authorised under section 336D to access the identifying information for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
This section does not apply if the access is through a disclosure that is a permitted disclosure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.
The Secretary or Australian Border Force Commissioner must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:
one or more of the purposes set out in subsection 5A(3);
disclosing identifying information in accordance with this Part;
administering or managing the storage of identifying information;
making identifying information available to the person to whom it relates;
modifying identifying information to enable it to be matched with other identifying information;
modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
the purposes of:
this Act or an instrument made under this Act; or
(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act 1901 or an instrument made under that Act; or
any other law of the Commonwealth prescribed by the regulations;
complying with laws of the Commonwealth or the States or Territories.
However, the Secretary or Australian Border Force Commissioner must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:
investigating an offence against a law of the Commonwealth or a State or Territory; or
prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
A person commits an offence if:
the person’s conduct causes disclosure of identifying information; and
the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
This section does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) A permitted disclosure is a disclosure that:
is for the purpose of data-matching in order to:
identify, or authenticate the identity of, a person; or
facilitate the processing of persons entering or departing from Australia; or
identify non-citizens who have a criminal history or who are of character concern; or
identify persons who may be a security concern to Australia or a foreign country; or
combat document and identity fraud in immigration matters; or
ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or
inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed, taken or deported from Australia; or
is for the purpose of administering or managing the storage of identifying information; or
is for the purpose of:
this Act or an instrument made under this Act; or
(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act 1901 or an instrument made under that Act; or
any other law of the Commonwealth prescribed by the regulations; or
is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or
is for the purpose of making the identifying information in question available to the person to whom it relates; or
is to an agency of the Commonwealth or of a State or Territory in order to verify that a person is an Australian citizen or holds a visa of a particular class; or
takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or
is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or
is required by or under a law of the Commonwealth or of a State or Territory; or
is for the purpose of identifying non-citizens who have a criminal history or who are of character concern; or
is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or
is for the purpose of a proceeding, before a court, the ART or another tribunal, relating to the person to whom the identifying information in question relates; or
is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official in relation to action taken by the Department; or
is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or
is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or
is for the purposes of the extradition of persons to or from Australia, including the making of, or the consideration of whether to make, a request for extradition; or
is for the purposes of:
the provision, or proposed provision, of international assistance in criminal matters by the Attorney-General, or an officer of his or her Department, to a foreign country; or
the obtaining, or proposed obtaining, of international assistance in criminal matters by the Attorney-General, or an officer of his or her Department, from a foreign country; or
is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to:
carrying out an identification test; or
requiring the provision of a personal identifier; or
is a disclosure of an audio or a video recording for the purposes of:
(i) this Act or the regulations or the Australian Citizenship Act 2007 or the regulations made under that Act; and
transcribing or translating the recording, or conducting language analysis or accent analysis of the recording; or
takes place with the written consent of the person to whom the identifying information in question relates; or
is authorised by section 336FA; or
is authorised by section 336FC.
However, a disclosure is not a permitted disclosure if:
it is a disclosure of identifying information relating to a personal identifier of a prescribed type; and
it is for the purpose of:
investigating an offence against a law of the Commonwealth or a State or Territory; or
prosecuting a person for such an offence.
The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:
one or more specified foreign countries;
one or more specified bodies each of which is:
a police force or police service of a foreign country; or
a law enforcement body of a foreign country (including a war crimes tribunal); or
a border control body of a foreign country;
one or more specified international organisations, or specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;
one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;
one or more prescribed international organisations.
The Secretary or Australian Border Force Commissioner must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subsection 5A(3).
A disclosure is taken not to be authorised under this section if:
the person to whom the identifying information relates is:
an applicant for a protection visa; or
an unauthorised maritime arrival who makes a claim for protection as a refugee; or
an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.
A disclosure is taken not to be authorised under this section if:
the person to whom the identifying information relates is:
an applicant for a protection visa; or
an unauthorised maritime arrival who makes a claim for protection as a refugee; or
an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
the officer making the disclosure is not reasonably satisfied that the country or body to which the disclosure is made will not disclose the identifying information to a foreign country in respect of which the application or claim is made, or a body of such a country.
However, if:
the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which the application or claim is made; or
the person is an applicant for a protection visa, and the application has been refused and finally determined; or
the person is an unauthorised maritime arrival:
who makes a claim for protection as a refugee; and
who, following assessment of his or her claim, is found not to be a person in respect of whom Australia has protection obligations; or
the person is an unauthorised maritime arrival:
who makes a claim for protection on the basis that the person will suffer significant harm; and
who, following assessment of his or her claim, is found not to be a person for whom there is a real risk of suffering significant harm; or
the person is an unauthorised maritime arrival:
who makes a claim for protection on the basis that the person will suffer significant harm; and
who, following assessment of his or her claim, is found to be a person in respect of whom there are serious reasons for considering that he or she has committed a crime against peace, a war crime or a crime against humanity (as defined by international instruments prescribed by the regulations) or a serious non-political crime before entering Australia, or that he or she has been guilty of acts contrary to the purposes and principles of the United Nations; or
the person is an unauthorised maritime arrival:
who makes a claim for protection on the basis that the person will suffer significant harm; and
who, following assessment of his or her claim, is found to be a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community;
then:
subsection (3) does not apply to a disclosure to that country or to a body of that country; and
subsection (4) does not apply to a disclosure to a body or country that may disclose the identifying information to that foreign country or to a body of that country.
Note: See section 11A for when an application is finally determined.
(1) For the purposes of paragraph 336E(2)(j), this section authorises the disclosure, by an officer, of identifying information that relates to a person (the subject) if:
(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and
the disclosure is made to an individual; and
the disclosure is for the purpose of obtaining the individual’s help to do one or more of the following in connection with the administration of this Act:
identify, authenticate the identity of, or locate, the subject;
refer the officer to another person who might be able to help identify, authenticate the identity of, or locate, the subject; and
the officer has reasonable grounds to believe that the individual might be able to provide the help that is the purpose of the officer’s disclosure; and
the officer is satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help; and
the information is only disclosed to the extent necessary in order to obtain that help.
Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
Nothing in subsection (1) prevents an officer from disclosing the personal identifier to more than one individual at the same time, as long as the requirements of subsection (1) are met in relation to each one of those individuals.
(1) An officer may disclose, to an individual, personal information about a person (the subject) if:
the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and
the personal information is disclosed together with the personal identifier; and
paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to the personal information as well as the personal identifier.
This section does not apply to personal information that is identifying information.
Nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to each one of those individuals.
(1) For the purposes of paragraph 336E(2)(k), this section authorises the disclosure of identifying information that relates to a person (the subject) who is not a minor, if:
(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and
the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the subject, in connection with the administration of this Act; and
the Secretary or Australian Border Force Commissioner has authorised, in writing, disclosure of the personal identifier.
Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
The Secretary or Australian Border Force Commissioner must not authorise disclosure of the personal identifier unless:
the Secretary or Australian Border Force Commissioner is satisfied that other reasonable steps have been taken to identify, authenticate the identity of, or locate, the subject; and
either:
the Secretary or Australian Border Force Commissioner is satisfied that the subject has been informed of the proposed disclosure (including the personal identifier that is to be disclosed and the manner in which the disclosure is to be made) and the Secretary or Australian Border Force Commissioner has either considered the subject’s views in relation to the proposed disclosure or been satisfied that the subject has no views in relation to it; or
the Secretary or Australian Border Force Commissioner is satisfied that the subject cannot be found; and
the Secretary or Australian Border Force Commissioner has considered the sensitivity of the personal identifier that is to be disclosed; and
the Secretary or Australian Border Force Commissioner is satisfied that it is reasonably necessary to authorise disclosure in order to identify, authenticate the identity of, or locate, the subject; and
if personal information that is not identifying information is to be disclosed together with the personal identifier—the Secretary or Australian Border Force Commissioner is satisfied that it is reasonably necessary to disclose the personal information together with the personal identifier in order to identify, authenticate the identity of, or locate, the subject.
For the purposes of subparagraph (2)(b)(i), if the subject does not express a view in relation to the proposed disclosure within a reasonable time of being informed of it, the Secretary or Australian Border Force Commissioner is entitled to be satisfied that the subject has no views in relation to it.
If the Secretary or Australian Border Force Commissioner authorises disclosure of a personal identifier under paragraph (1)(c), the authority covers all disclosures of the identifier made for the purpose mentioned in paragraph (1)(b).
An authority under paragraph (1)(c) is not a legislative instrument.
(1) For the purposes of paragraph 6.2(b) of Australian Privacy Principle 6, the disclosure by a person of personal information about another person (the subject) is taken to be a disclosure that is authorised by this Act if:
the person is disclosing a personal identifier of the subject and the disclosure is authorised by section 336FC; and
the personal information is disclosed together with the personal identifier; and
the disclosure of the personal information is for the purpose mentioned in paragraph 336FC(1)(b).
This section does not apply to personal information that is identifying information.
A person commits an offence if:
the person causes any unauthorised modification of identifying information; and
the person intends to cause the modification; and
the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
A person commits an offence if:
the person causes any unauthorised impairment of:
the reliability of identifying information; or
the security of the storage of identifying information; or
the operation of a system by which identifying information is stored; and
the person intends to cause the impairment; and
the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
In this Part:
modification of identifying information; or
impairment of the reliability of identifying information; or
impairment of the security of the storage of identifying information; or
impairment of the operation of a system by which identifying information is stored;
by a person is unauthorised if the person is not entitled to cause that modification or impairment.
Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
For the purposes of an offence under this Part, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.
For the purposes of subsection (1), if:
a person causes any modification or impairment of a kind mentioned in that subsection; and
the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
A person commits an offence if:
the person is the responsible person for identifying information; and
the identifying information is not of a kind that may, under section 336L, be indefinitely retained; and
(c) the person fails to destroy the identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: See Archives Act 1983 (particularly paragraphs 24(2)(b) and (c)) on the obligation to keep the identifying information.section 24 of the
This section does not apply if the identifying information is:
a personal identifier that is any of the following:
a measurement of a person’s height and weight;
a photograph or other image of a person’s face;
a person’s signature; or
identifying information derived from or relating to such a personal identifier.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) For the purposes of this section, the responsible person for identifying information is:
if the identifying information is stored on a database—the person who has day-to-day control of the database; or
otherwise—the person who has day-to-day responsibility for the system under which the identifying information is stored.
(4) Identifying information is destroyed if:
in the case of identifying information that is a personal identifier—it is physically destroyed; and
in any other case—any means of identifying it with the person to whom it relates is destroyed.
Identifying information may be indefinitely retained if the non-citizen to whom it relates:
is, or has ever been, in immigration detention; or
has ever had an application for a visa refused, or has ever had a visa cancelled; or
has ever:
entered Australia on a temporary visa; and
since its expiry, remained in Australia as an unlawful non-citizen; or
has ever been convicted of an offence against this Act or the regulations; or
has ever been subject to action taken under this Act or the regulations for the purpose of:
deporting the non-citizen; or
removing the non-citizen from Australia; or
is a person in respect of whom the Minister has issued a conclusive certificate under subsection (4).
Paragraph (1)(a) does not apply in relation to detention that occurs only because the non-citizen is, or was, detained for questioning detention (see section 192). However, this subsection does not apply if the detention leads to detention under section 189 because of the application of subsection 190(2).
Paragraph (1)(b) does not apply if the decision to refuse the application for the visa, or to cancel the visa, was set aside on a review.
The Minister may issue a conclusive certificate in respect of a non-citizen if the Minister is satisfied that:
the non-citizen is a threat to the security of the Commonwealth or of a State or Territory; or
it is in the public interest to do so.
The power under subsection (4) may only be exercised by the Minister personally.
This Part provides for the review of reviewable migration decision and reviewable protection decisions by the ART (short for the Administrative Review Tribunal).
Such decisions relate to the grant or cancellation of visas in some circumstances and to decisions under subsection 197D(2) (decision that protection finding would no longer be made). They do not include decisions in relation to which the Minister has given a conclusive certificate.
This Part applies in relation to the review by the ART of reviewable migration decisions and reviewable protection decisions.
Note: ART stands for Administrative Review Tribunal (see subsection 5(1)).
Subject to sections 357A and 367E of this Act, the ART Act applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions unless this Part expressly provides otherwise.
The following provisions of the ART Act do not apply in relation to the review by the ART of reviewable migration decisions or reviewable protection decisions:
paragraph 21(2)(b) (notice of application to decision-maker);
paragraph 21(2)(c) (notice of application to other persons made a party to the proceedings);
subsection 21(3) (notice of application and right to apply to become a party);
section 23 (decision-maker must give Tribunal reasons and documents—general rule);
section 24 (decision-maker must give Tribunal additional statement if Tribunal requires—general rule);
within 28 days—general rule);section 25 (decision-maker must give Tribunal additional documents
section 27 (decision-maker must give copies of reasons and documents to other parties—general rule);
section 32 (reviewable decision continues to operate unless Tribunal orders otherwise);
section 85 (tribunal may remit decision to decision-maker for reconsideration);
section 97 (Tribunal must dismiss application if decision is not reviewable decision);
section 98 (Tribunal may dismiss application if fee is not paid);
section 103 (if parties reach agreement—review of decisions only);
section 107 (when Tribunal’s decision on review comes into operation);
section 294 (legal or financial assistance), unless the review is of a decision referred to the guidance and appeals panel by the President of the ART under section 122 of the ART Act.
Note: Other provisions of this Part turn off or otherwise modify the operation of other provisions of the ART Act.
In this Part:
application to be reviewed on the papers: see subsections 367C(2) and (3).
Australian permanent resident means an Australian permanent resident within the meaning of the regulations.
company includes any body or association (whether or not it is incorporated), but does not include a partnership.
decision on a review means any of the following decisions of the ART in relation to an application for review of a reviewable migration decision or a reviewable protection decision: a decision under section 105 of the ART Act to affirm the decision; a decision under section 105 of the ART Act to vary the decision; a decision under subsection 349(2) of this Act to remit a matter in relation to the decision for reconsideration; a decision under section 105 of the ART Act to set the decision aside and substitute a new decision; a decision under paragraph 368C(3)(b) or subsection 368C(5) of this Act to confirm a decision to dismiss the application.
a decision under section 105 of the ART Act to affirm the decision;
a decision under section 105 of the ART Act to vary the decision;
a decision under subsection 349(2) of this Act to remit a matter in relation to the decision for reconsideration;
a decision under section 105 of the ART Act to set the decision aside and substitute a new decision;
a decision under paragraph 368C(3)(b) or subsection 368C(5) of this Act to confirm a decision to dismiss the application.
nominated has the same meaning as in the regulations.
sponsored has the same meaning as in the regulations.
(1) A decision is a reviewable migration decision if this section so provides, unless:
the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
the decision is a reviewable protection decision; or
the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
(2) A decision (other than a decision covered by subsection (4) or made under reviewable migration decision if:section 501) to refuse to grant a non-citizen a visa is a
the visa could be granted while the non-citizen is in the migration zone; and
the non-citizen made the application for the visa while in the migration zone; and
the decision was not made when the non-citizen:
was in immigration clearance; or
had been refused immigration clearance and had not subsequently been immigration cleared; and
if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a reviewable migration decision unless the decision:
is covered by subsection (4); or
is made at a time when the non-citizen was in immigration clearance; or
was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A) A decision under reviewable migration decision if the non-citizen was in the migration zone when the decision was made.section 137L not to revoke the cancellation of a non-citizen’s visa is a
(4) The following decisions are reviewable migration decisions:
a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal;
a decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation;
a decision to not grant a non-citizen a Subclass 070 (Bridging (Removal Pending)) visa under a provision of the regulations prescribed for the purposes of subsection 76E(4) that is not subject to any one or more of the conditions prescribed for the purposes of paragraph 76E(1)(a).
(5) A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if:
the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
an Australian citizen; or
a company that operates in the migration zone; or
a partnership that operates in the migration zone; or
the holder of a permanent visa; or
a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if:
the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and
a parent, spouse, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if:
the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and
particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A) A decision to refuse to grant a non-citizen a permanent visa is a reviewable migration decision if:
the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
(8) A decision, under reviewable migration decision if:section 93, as to the assessed score of an applicant for a visa is a
the visa is a visa that could not be granted while the applicant is in the migration zone; and
the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
an Australian citizen; or
the holder of a permanent visa; or
a New Zealand citizen who holds a special category visa; and
the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is a reviewable migration decision.
(1) Subject to subsection (2), the following decisions are reviewable protection decisions:
a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
a decision to refuse to grant a protection visa, other than a decision that was made relying on:
subsection 5H(2), or 36(1B) or (1C); or
paragraph 36(2C)(a) or (b);
a decision to cancel a protection visa, other than a decision that was made because of:
subsection 5H(2) or 36(1C); or
(ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (Australian Security Intelligence Organisation Act 1979); orwithin the meaning of section 4 of the
paragraph 36(2C)(a) or (b);
a decision under subsection 197D(2) that a non-citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made.
(2) The following decisions are not reviewable protection decisions:
decisions in relation to which the Minister has issued a conclusive certificate under section 339;
any decision to cancel a protection visa that is made personally by the Minister;
decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made.
The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
it would be contrary to the national interest to change the decision; or
it would be contrary to the national interest for the decision to be reviewed.
Note: If the Minister issues a conclusive certificate in relation to a decision, the decision is not a reviewable migration decision (see paragraph 338(1)(a)) or a reviewable protection decision (see paragraph 338A(2)(a)).
Making an application
An application may be made to the ART for review of a reviewable migration decision or a reviewable protection decision.
The application must:
include the prescribed information (if any); and
be accompanied by the prescribed documents (if any); and
be accompanied by the prescribed fee (if any).
Time for making an application
An application must be made:
if the applicant is in immigration detention on the day the applicant is notified of the decision—within 14 days after the day the applicant is notified of the decision; or
otherwise—within 28 days after the day the applicant is notified of the decision.
Certain provisions of the ART Act do not apply
Subsection (3) applies despite section 18 (when to apply—general rule) of the ART Act.
Section 19 (ART may extend period) of the ART Act does not apply in relation to reviewable migration decisions or reviewable protection decisions.
Subsections 34(2) and (3) (information to include in applications and validity) of the ART Act do not apply to an application to the ART for review of a reviewable migration decision or a reviewable protection decision.
Paragraph (2)(c) has effect despite any rules made for the purposes of section 296 (Tribunal may charge fees) of the ART Act to the extent those rules relate to applications to the ART for review of reviewable migration decisions or reviewable protection decisions.
An application for review of a reviewable migration decision may only be made by:
for a decision covered by subsection 338(2), (3), (3A), (4) or (7A)—the non-citizen who is the subject of that decision; or
for a decision covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
for a decision covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
for a decision covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (c) of this subsection.
If the reviewable migration decision is covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
If the reviewable migration decision is covered by subsection 338(7A), an application for review may only be made by a non-citizen who:
was physically present in the migration zone at the time when the decision was made; and
is physically present in the migration zone when the application for review is made.
An application for review of a reviewable protection decision may only be made by the non-citizen who is the subject of the decision.
An application for review of a reviewable protection decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
This section has effect despite section 17 (who can apply) and section 35 (applications may be made on behalf of a person) of the ART Act.
If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 and 347A, the ART must review the decision.
Note: The ART has no jurisdiction to review a decision if the application for review is not properly made.
However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339.
The Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act, other than in relation to a guidance and appeals panel proceeding.
Despite paragraph 22(1)(c) of the ART Act, a person cannot apply to the ART to become a party to the proceeding for review of a reviewable migration decision or a reviewable protection decision.
The Minister:
cannot give a notice to the ART under section 62 (Tribunal may allow non-participating party to participate) of the ART Act; and
cannot give written submissions in relation to the proceeding under subsection 63(1) of the ART Act.
An order under subsection 63(2) of the ART Act can only be made by the President or a Deputy President of the ART in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
Rules made for the purposes of subsection 64 (rules may deal with elections in relation to participation) of the ART Act do not apply in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
Subparagraph 105(c)(ii) of the ART Act does not apply in relation to a reviewable migration decision or a reviewable protection decision.
If a reviewable migration decision or reviewable protection decision relates to a prescribed matter, the ART may, under this subsection:
set aside the decision; and
remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations.
Paragraph (2)(a) of this section applies despite subsection 31(1) (decision cannot be altered outside Tribunal process) of the ART Act.
In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the ART is to have regard to are whichever of the following are more favourable to the applicant:
the regulations for that purpose that were in force at the time the assessment was made by the Minister;
the regulations for that purpose that are in force at the time the decision was made by the ART about the assessment.
In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the ART may have regard to are:
in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and
in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the ART about the assessment.
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the ART referred to in subsection (1A) another decision, being a decision that is more favourable to the applicant, whether or not the ART had the power to make that other decision.
For the purposes of subsection (1), the decisions are as follows:
a decision under section 349 of this Act;
a decision under section 368C of this Act;
a decision under section 105 of the ART Act.
In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the decision of the ART; and
sets out the decision substituted by the Minister; and
sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement made under subsection (4) in relation to a reviewable migration decision is not to include:
the name of the applicant; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
A statement made under subsection (4) in relation to a reviewable protection decision is not to include:
the name of the applicant; or
any information that may identify the applicant; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
If an application for review of a reviewable migration decision or a reviewable protection decision is made to the ART, the ART must, as soon as practicable, give the Secretary written notice of the making of the application.
Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the ART the prescribed number of copies of a statement about the decision under review that:
sets out the findings of fact made by the person who made the decision; and
refers to the evidence on which those findings were based; and
gives the reasons for the decision.
If the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application.
The Secretary must, as soon as is practicable after being notified of the application, give to the ART each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
For the purpose of the review of a decision, the ART may require the Secretary to arrange for the making of any investigation, or any medical examination, that the ART considers necessary with respect to the review, and to give to the ART a report of that investigation or examination.
This section applies in addition to, and does not limit, the ART’s powers under the ART Act (as modified by this Act).
This Division applies in relation to an application made to the ART for review of a reviewable migration decision or a reviewable protection decision.
However, this Division does not apply in relation to an application to be reviewed on the papers.
Note: Division 4A applies in relation to such an application (which is for review of a decision relating to a temporary visa, and is prescribed by the regulations (see section 367C)).
The relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
If there is any inconsistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:
section 49 (Tribunal has discretion in relation to procedure);
section 50 (Tribunal is to act informally etc.);
section 53 (Tribunal controls scope of review of decision);
section 55 (right to present case).
Note: The ART Act generally applies in relation to reviews by the ART (see subsection 336P(1)).
Without limiting subsection (2A), paragraph 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or a reviewable protection decision.
As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal with.
(2D) In this section, the relevant provisions are:
this Division; and
sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.
In applying this Division, the ART must act in a way that is fair and just.
Subject to subsection (2), the ART must:
give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
invite the applicant to comment on it.
If the information or invitation is given to the applicant in writing, the information and invitation must be given:
except where paragraph (b) applies—by one of the methods specified in section 379A; or
if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
This section does not apply to information:
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
that the applicant gave for the purpose of the application for review; or
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
that is non-disclosable information; or
that was included, or referred to, in the written statement of the decision that is under review; or
that is prescribed by regulation for the purposes of this paragraph.
The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.
A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).
An applicant may request that the Department provide access to any written material given or produced to the ART by the Department for the purposes of the review.
If the applicant makes a request under subsection (1), the Department must provide the applicant with access to the material (which may be by way of access to a copy of the material).
However, the Department does not need to provide the applicant with access to material to which the following apply:
section 375A (certain information only to be disclosed to ART);
section 376 (ART’s discretion in relation to disclosure of certain information etc.).
Interaction with the Privacy Act 1988
(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
No access if the ART has given decision notice
This section does not apply if the ART has given the applicant a copy of the statement required by subsection 368(1).
The ART may combine the reviews of 2 or more reviewable migration decisions or reviewable protection decisions made in respect of the same person.
A person is not entitled to examine or cross-examine any person appearing before the ART to give evidence.
Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the ART must make its decision on review, and notify the applicant of the decision, within the prescribed period.
The ART may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
(1) This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
raises a claim that was not raised before the primary decision was made; or
presents evidence in the application that was not presented before the primary decision was made.
In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The hearing of a proceeding (within the meaning of the ART Act) for the review of a reviewable protection decision must be in private.
Note: Section 69 of the ART Act, which generally requires hearings to be in public, applies to hearings of proceedings for the review of reviewable migration decisions.
This Division applies in relation to an application to be reviewed on the papers.
(2) An application made to the ART for review of a reviewable migration decision is an application to be reviewed on the papers if:
the decision is a decision relating to a temporary visa; and
the application is of a kind (if any) prescribed for the purposes of this subsection.
Note: An application made to the ART for review of a reviewable protection decision cannot be an application to be reviewed on the papers (see paragraph 338(1)(b)).
(3) However, an application is not, or ceases to be, an application to be reviewed on the papers if:
the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act; or
the circumstances (if any) prescribed for the purposes of this paragraph apply in relation to the application.
Regulations
Without limiting paragraphs (2)(b) and (3)(b), regulations made for the purposes of those paragraphs may prescribe kinds of, or circumstances relating to, applications made before, on or after the commencement of those regulations.
The regulations may provide that specified steps taken under this Division or Division 4 in relation to applications that cease to be, or that become, applications to be reviewed on the papers are to be treated as steps taken under Division 4 or this Division (as the case may be).
The following provisions of the ART Act do not apply in relation to applications to be reviewed on the papers:
sections 43 to 46 (reconstitution of Tribunal);
Note: See section 367L (ART may be reconstituted) of this Act.
section 55 (right to present case);
Note: See sections 367E (exhaustive statement of natural justice hearing rule) and 367N (decision without hearing) of this Act.
paragraph 63(2)(a) (non-participating party may be required to appear);
Subdivision A of Division 6 of Part 4 (Tribunal powers relating to hearings and evidence), other than sections 70 and 71 (Tribunal may restrict publication or disclosure of information);
paragraphs 79(2)(c) to (i) and (k) (Tribunal directions in relation to hearings);
sections 80 to 83 (Tribunal powers in relation to hearings);
section 106 (review of decisions without hearing);
Note: See section 367N (decision without hearing) of this Act.
any other provision prescribed by the regulations.
Note: Other provisions of the ART Act do not apply in relation to applications to be reviewed on the papers (see, for example, subsection 336P(2) of this Act).
The relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
If there is any inconsistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:
section 49 (Tribunal has discretion in relation to procedure);
section 50 (Tribunal is to act informally etc.);
section 51 (Tribunal to be accessible);
section 53 (Tribunal controls scope of review of decision).
Note 1: The ART Act generally applies in relation to reviews by the ART (see subsection 336P(1) of this Act).
Note 2: Various provisions of the ART Act do not apply in relation to applications to be reviewed on the papers (see subsection 336P(2) and section 367D of this Act).
As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal with.
(4) In this section, the relevant provisions are:
this Division; and
sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.
(1) The ART must, in relation to an application to be reviewed on the papers, invite the applicant to give the ART written submissions and evidence relating to the following issues (the relevant issues):
if the application is for review of a decision to refuse to grant a visa:
if the refusal was because the applicant did not satisfy a criterion for the visa—whether the applicant satisfies that criterion; and
if the refusal was because a provision of this Act or the regulations prevented the grant of the visa—whether that provision prevents the grant of the visa;
in any case—any other issue prescribed by the regulations.
A reference to the issue specified in subparagraph (1)(a)(i) as to whether the applicant satisfies a criterion for the visa:
is a reference to whether the applicant satisfies the criterion generally, and not only the parts or aspects of the criterion that formed the basis of the refusal; and
is not limited to the reasons referred to in the notification of the refusal.
Subject to section 367G, before making a decision on the application, the ART is not required to:
do anything further to put the applicant on notice of the relevant issues; or
seek any further submissions, evidence or other information from the applicant in relation to the relevant issues.
The ART must:
give to the applicant clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
invite the applicant to comment on the information.
Exception—certain kinds of information
Subsection (1) does not apply in relation to information:
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
that the applicant gave for the purpose of the application for review; or
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
that is non-disclosable information; or
that was included, or referred to, in the written statement of the decision that is under review; or
that is prescribed by regulation for the purposes of this paragraph.
The ART is not required to give particulars of information mentioned in subsection (2) to the applicant before making a decision on the application under:
section 105 (decision to affirm, vary, or set aside and substitute or remit) of the ART Act; or
section 349 (decision to set aside and remit relating to a prescribed matter) of this Act.
Does not include certain affirmations of dismissal
A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).
Any invitation given under subsection 367F(1), or any information and invitation given under subsection 367G(1), must:
be given in writing; and
be given:
unless subparagraph (ii) applies—by one of the methods specified in section 379A; or
if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person; and
specify that the applicant must respond in writing; and
(d) specify the period (the response period) within which the applicant must respond; and
be given in accordance with the prescribed requirements (if any).
The response period must be:
if a period is prescribed for the purposes of this paragraph—that period; or
in any other case—a reasonable period specified in the notice.
Note: The ART does not have the power to extend the response period.
An applicant may request that the Department provide access to any written material given or produced to the ART by the Department for the purposes of the review.
If the applicant makes a request under subsection (1), the Department must provide the applicant with access to the material (which may be by way of access to a copy of the material).
However, the Department does not need to provide the applicant with access to material to which the following apply:
section 375A (certain information only to be disclosed to ART);
section 376 (ART’s discretion in relation to disclosure of certain information etc.).
Interaction with the Privacy Act 1988
(4) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
No access if the ART has given decision notice
This section does not apply if the ART has given the applicant a copy of the statement required by subsection 368(1).
The ART may combine reviews under 2 or more applications to be reviewed on the papers in respect of the same person.
At any time before the ART makes its decision in a proceeding in relation to an application to be reviewed on the papers, the President of the ART may reconstitute the Tribunal (within the meaning of the ART Act).
Note: Section 48 of the ART Act applies after the ART is reconstituted.
The ART must dismiss an application if the applicant does not respond to an invitation, in relation to the application, given by the ART under subsection 367F(1), within the response period mentioned in paragraph 367H(1)(d) for the invitation.
This section does not limit any other power of the ART to dismiss an application.
Note 1: The ART may dismiss an application, for example, if the applicant fails to comply with an order of the ART in relation to the proceeding (see section 100 of the ART Act).
Note 2: The ART must, under section 368B, notify the applicant of a decision to dismiss an application.
Note 3: The applicant may, within 28 days after receiving the notice, apply to the ART for reinstatement of the application (see section 368C).
The ART must make its decision in the proceeding in relation to an application to be reviewed on the papers:
after considering:
any submissions, evidence and comments given by the applicant; and
any other documents and things given to the ART in relation to the proceeding; and
without holding the hearing of the proceeding.
Note 1: Section 106 of the ART Act does not apply in relation to the application (see paragraph 367D(g) of this Act).
Note 2: This subsection does not apply if the application has been dismissed, unless the application is reinstated (see sections 367M and 368C).
The applicant is not entitled to appear before the ART.
The ART must not make the decision before the later of the following:
the end of the response period mentioned in paragraph 367H(1)(d) for any invitation given under subsection 367F(1), or any information and invitation given under subsection 367G(1), in relation to the application;
the end of any period within which a party to the proceeding must give information or documents under an order made under section 79 of the ART Act in relation to the application.
Written statement must be made
If the ART makes a decision on a review, the ART must make a written statement that:
sets out the decision of the ART on the review; and
includes a statement of reasons (within the meaning of the ART Act) for the ART’s decision; and
in the case of a decision under paragraph 368C(3)(b) or subsection 368C(5) to confirm the dismissal of an application—indicates that, under subsection 368C(6), the decision under review is taken to be affirmed; and
records the day and time the statement is made.
Subsection (1) is subject to:
paragraphs 375A(2)(b) and 376(3)(b) of this Act; and
sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information—public interest certificate) of the ART Act.
Certain decisions may be given orally before written statement made
Subject to subsection 368C(7), the ART may give a decision on a review and the reasons for the decision orally before making the written statement.
Note: Decisions made under paragraph 368C(3)(b) or subsection 368C(5) cannot be given orally (see subsection 368C(7)).
If subsection (3) applies, the ART must identify, and make a written record of, the day and time the decision is given orally.
Decision cannot be changed
The ART has no power to vary or revoke the decision after:
if the decision on a review is given to the applicant orally before making the written statement—the day and time the decision is given orally; or
otherwise—the day and time the written statement under subsection (1) is made.
When decision taken to have been made
If the decision is not given to the applicant orally before the written statement is made, the decision is taken to have been made:
by the making of the written statement; and
on the day, and at the time, the written statement is made.
If the decision is given to the applicant orally before the written statement is made, the decision is taken to have been made, and notified to the applicant, on the day and at the time the decision is given orally to the applicant.
Validity etc. not affected by procedural irregularities
The validity of a decision on a review, and the operation of subsection (5), are not affected by:
a failure to record, under paragraph (1)(d), the day and time when the written statement was made; or
a failure to identify or record, under subsection (4), the day and time when the decision was given orally.
Interaction with the ART Act
This section applies despite sections 111 (notice of decision and statement of reasons—review of reviewable decision) and 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
The ART must notify the applicant of a decision on a review by giving the applicant a copy of the written statement made under subsection 368(1).
The copy must be given to the applicant:
within 14 days after the day on which the decision is taken to have been made; and
by one of the methods specified in section 379A.
A copy of that statement must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made.
A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
This section applies despite subsection 111(3) and section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
Decisions to which this section applies
This section applies in relation to the following decisions:
a decision under the ART Act to dismiss an application for review of a reviewable migration decision or a reviewable protection decision;
a decision under section 367M of this Act to dismiss an application to be reviewed on the papers;
a decision under section 368C of this Act to reinstate an application.
Written statement
The ART must make a written statement that:
sets out the decision of the ART; and
records the day and time the statement is made.
The decision is taken to have been made:
by making the written statement; and
on the day and at the time the written statement is made.
The ART has no power to vary or revoke the decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 368C(4)).
Notice to applicant
The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
within 14 days after the day on which the decision is taken to have been made; and
by one of the methods specified in section 379A.
Notice to Secretary
A copy of the written statement made under subsection (2) must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made
Validity etc. not affected by procedural irregularities
The validity of a decision to which this section applies, and the operation of subsection (4), are not affected by:
a failure to record, under paragraph (2)(b), the day and time when the written statement was made; or
a failure to comply with subsection (5) or (6).
Interaction with ART Act
This section applies despite section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
If the dismissal is made under one of the following provisions, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
section 99 (Tribunal may dismiss application if applicant does not appear) of the ART Act;
section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.) of the ART Act;
section 101 (Tribunal may dismiss application if frivolous, vexatious etc.) of the ART Act;
section 367M (dismissing applications to be reviewed on the papers) of this Act.
Note: Section 379C sets out when a person is taken to have received a document from the ART for the purposes of this Part.
On application for reinstatement in accordance with subsection (2), the ART must:
if it considers it appropriate to do so—reinstate the application by written statement under 368B; or
confirm the decision to dismiss the application, by written statement under section 368.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application.
If the ART reinstates the application:
the application is taken never to have been dismissed; and
the ART must conduct (or continue to conduct) the review accordingly.
If the applicant fails to apply for reinstatement within the 28-day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the ART must notify the applicant of a decision to confirm the dismissal of the application.
If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
The ART cannot give a decision orally under subsection (3) or (5).
This section applies to reviewable protection decisions.
The ART must not publish information under section 113 of the ART Act which may identify:
an applicant for review of a decision; or
any relative or other dependant of an applicant for review of a decision.
Notification of case event
If the ART gives a written notice to an applicant for review of a reviewable migration decision or a reviewable protection decision under subsection 72(1) of the ART Act, the ART must give the notice to the applicant:
except where paragraph (b) applies—by one of the methods specified in section 379A; or
if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Directions in relation to procedure
If the ART gives a direction in relation to the procedure to be followed for a proceeding for review of a reviewable migration decision or a reviewable protection decision under subsection 79(1) of the ART Act:
the direction must be given to the applicant in writing; and
the ART must give the direction to the applicant:
except where subparagraph (ii) applies—by one of the methods specified in section 379A; or
if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
In spite of anything else in this Act or the ART Act, the Secretary shall not give to the ART a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
because it would prejudice the security, defence or international relations of Australia; or
because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
This section applies to a document or information if the Minister:
has certified, in writing, that the disclosure, otherwise than to the ART, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
has included in the certificate a statement that the document or information must only be disclosed to the ART.
If, pursuant to a requirement of or under this Act or the ART Act, the Secretary gives to the ART a document or information to which this section applies:
the Secretary must notify the ART in writing that this section applies to the document or information; and
the ART must do all things necessary to ensure that the document or information is not disclosed to any person other than an ART member of the ART as constituted for the purposes of the particular review.
This section applies to a document or information if:
the Minister:
has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
has not included a statement in the certificate that the document or information must only be disclosed to the ART; or
the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
Where, pursuant to a requirement of or under this Act or the ART Act, the Secretary gives to the ART a document or information to which this section applies, the Secretary:
shall notify the ART in writing that this section applies in relation to the document or information; and
may give the ART any written advice that the Secretary thinks relevant about the significance of the document or information.
Where the ART is given a document or information and is notified that this section applies in relation to it, the ART:
may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
may, if the ART thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the ART.
An entrusted person must not be required to produce or disclose a protected document, or protected information, to a parliament if:
the document or information relates to a reviewable protection decision; and
the production or disclosure is not necessary for the purposes of carrying into effect the provisions of the ART Act or another enactment conferring powers on the ART.
Subsection (1) applies despite subsection 274(1) of the ART Act.
In this section:
entrusted person has the same meaning as in the ART Act.
parliament means:
a House of the Parliament of the Commonwealth, of a State or of a Territory; or
a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.
protected document has the same meaning as in the ART Act.
protected information has the same meaning as in the ART Act.
If:
a provision of this Act, regulations made under this Act, or the ART Act (as modified by this Act) requires or permits the ART to give a document to a person (other than the Secretary); and
the provision does not state that the document must be given:
by one of the methods specified in section 379A; or
by a method prescribed for the purposes of giving documents to a person in immigration detention;
the ART may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA.
Note 2: Under section 379G an applicant may give the ART the name of an authorised recipient who is to receive documents on the applicant’s behalf.
Note 3: ART practice directions apply in relation to the giving of documents to the Secretary.
If a person is a minor, the ART may give a document to an individual who is at least 18 years of age if an ART member, the ART Principal Registrar or a member of the staff of the ART reasonably believes that:
the individual has day-to-day care and responsibility for the minor; or
the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
If the ART gives a document to an individual, as mentioned in subsection (2), the ART is taken to have given the document to the minor. However, this does not prevent the ART giving the minor a copy of the document.
If a provision of the ART Act (other than section 79) permits or requires the ART to make an order, the provision is taken, for the purposes of this section, to be a provision of the ART Act that requires or permits the ART to give a document to a person.
Note: Orders given under section 79 (Tribunal may give directions in relation to procedure for proceeding) of the ART Act are dealt with by section 374 of this Act.
Coverage of section
For the purposes of provisions of this Part or the regulations that:
(a) require or permit the ART to give a document to a person (the recipient); and
state that the ART must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the ART may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
who is at least 18 years of age; and
(b) who an ART member, the ART Principal Registrar or a member of the staff of the ART (each of whom is an ART official) reasonably believes:
has day-to-day care and responsibility for the minor; or
works in an or for organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the ART gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
One method consists of an ART official or a person authorised by the ART Principal Registrar handing the document to the recipient.
Handing to a person at last residential or business address
Another method consists of an ART official or a person authorised by the ART Principal Registrar handing the document to another person who:
is at the last residential or business address provided to the ART by the recipient in connection with the review; and
appears to live there (in the case of a residential address) or work there (in the case of a business address); and
appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
Another method consists of an ART official dating the document, and then dispatching it:
within 3 working days (in the place of dispatch) of the date of the document; and
by prepaid post or by other prepaid means; and
to:
the last address for service provided to the ART by the recipient in connection with the review; or
the last residential or business address provided to the ART by the recipient in connection with the review; or
if the recipient is a minor—the last address for a carer of the minor that is known by the ART official.
Transmission by fax, email or other electronic means
Another method consists of an ART official transmitting the document by:
fax; or
email; or
other electronic means;
to:
the last fax number, email address or other electronic address, as the case may be, provided to the ART by the recipient in connection with the review; or
if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the ART official.
Documents given to a carer
If the ART gives a document to a carer of a minor, the ART is taken to have given the document to the minor. However, this does not prevent the ART giving the minor a copy of the document.
This section applies if the ART gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Giving by hand
If the ART gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
If the ART gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
If the ART gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
If the ART gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Document not given effectively
If:
the ART purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the ART had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.
Note 1: If the ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
Note 2: Section 379G deals with giving documents to a person’s authorised recipient.
If:
(a) a person (the applicant) applies for review of a reviewable migration decision or a reviewable protection decision; and
(b) the applicant gives the ART written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the ART must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
For the purposes of subsection (1):
paragraph (1)(a) is taken to also apply to an application for review of a reviewable migration decision or a reviewable protection decision where the application is not properly made under section 347 or 347A; and
in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under either or both of those sections).
If the ART gives a document to the authorised recipient, the ART is taken to have given the document to the applicant. However, this does not prevent the ART giving the applicant a copy of the document.
Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
This section does not apply to the ART giving documents to, or communicating with, the applicant when the applicant is appearing before the ART.
A privative clause decision:
is final and conclusive; and
must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).
A reference in this section to a decision includes a reference to the following:
granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
imposing, or refusing to remove, a condition or restriction;
making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
retaining, or refusing to deliver up, an article;
doing or refusing to do any other act or thing;
conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
a failure or refusal to make a decision.
For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
For the purposes of subsection (2), a decision under subsection 185(1) of the ART Act to refer a question of law arising in a proceeding for review of a reviewable migration decision or a reviewable protection decision to the Federal Court for decision is not a privative clause decision.
The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, or under the ART Act, is not a privative clause decision.
(6) A decision mentioned in subsection (4) or (4A), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection (5), is a non-privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection (2):
a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 84B, section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 199G or 351 or subsection 503A(3);
a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Note: Section 91Q was repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023.
Part 7 of the ART Act does not apply to an application in relation to, or a proceeding for the review of, any of the following:
a privative clause decision;
a purported privative clause decision;
an ART Act migration decision.
Despite subsection (1):
section 185 (referring questions of law) of the ART Act applies to an application in relation to, or a proceeding for the review of, a reviewable migration decision or a reviewable protection decision; but
the ART does not have a duty to consider a request to refer a question of law at the request of a party to a proceeding.
To avoid doubt, if the ART refers a question of law under section 185 of the ART Act, Division 6 of Part 7 of that Act applies in relation to the proceeding before the Federal Court in relation to the reference.
Subdivision A of Division 2 of Part 7 of the ART Act (appeals on questions of law) does not apply to a decision of the ART under section 185 of that Act (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision.
(1) A decision under a provision of the ART Act mentioned in subsection (2) is an ART Act migration decision, to the extent that the decision is made in relation to any of the following:
a review of a particular reviewable migration decision or a particular reviewable protection decision;
a function of the ART in relation to the exercise of its jurisdiction to review reviewable migration decisions or reviewable protection decisions;
an ART member in the Migration jurisdictional area;
an ART member in the Protection jurisdictional area.
Note: An ART Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)).
The provisions of the ART Act are as follows:
Division 3 of Part 4;
Subdivisions A, B and D of Division 4 of Part 4;
section 58;
sections 197 to 199;
Subdivision A of Division 3 of Part 8;
sections 214 to 216;
section 218;
section 221;
section 227;
sections 237 to 239;
section 243.
Divisions 3 and 4 of Part 11.
This Division is not to be taken to limit the scope or operation of section 474.
Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
a primary decision;
a privative clause decision, or purported privative clause decision, of the ART on review under section 500;
a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
a non-privative clause decision mentioned in subsection 474(4A);
a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit and Family Court of Australia (Administrative Decisions (Judicial Review) Act 1977 or section 179 of the ART Act.Division 2) may have in relation to non-privative clause decisions under section 8 of the
In this section:
primary decision means a privative clause decision or purported privative clause decision:
that is reviewable under by application under Part 5 or section 500 (whether or not it has been reviewed); or
that would have been so reviewable if an application for such review had been made within a specified period.
(1) Despite any other law, including Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:section 39B of the
both:
(i) the Federal Circuit and Family Court of Australia (Federal Circuit and Family Court of Australia Act 2021; andDivision 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the
(ii) the Federal Court confirms the transfer under Federal Court of Australia Act 1976; orsection 32AD of the
the decision is a privative clause decision, or a purported privative clause decision, of the ART on review under section 500; or
the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
the Federal Court has jurisdiction in relation to the decision under section 176 (Federal Court has jurisdiction) or subsection 185(3) (referring questions of law) of the ART Act.
Note: The Federal Court’s jurisdiction referred to in paragraph (d) is limited: see section 474AA.
(1A) To avoid doubt, the Federal Court does not have original jurisdiction in relation to a migration decision under subsection (1) in respect of proceedings that are transferred to the Federal Court under Federal Court of Australia Act 1976.section 32AC of the
Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
(3) Despite Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:section 24 of the
a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2); or
a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(4) Despite Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).section 33 of the
In this section:
judgment has the same meaning as in the Federal Court of Australia Act 1976.
Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit and Family Court of Australia (Division 2).
The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Circuit and Family Court of Australia (Division 2) unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.
The High Court may remit a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court.
(4) Subsection (1) has effect despite Judiciary Act 1903.section 44 of the
An application to the Federal Circuit and Family Court of Australia (within 35 days of the date of the migration decision.Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court
The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this section:
date of the migration decision means:
in the case of a migration decision made under section 105 of the ART Act (other than a decision made by the ART in relation to an application under Part 5)—the day the decision is made under that section; or
in the case of a migration decision made by the ART in relation to an application under Part 5—the day the decision is taken to have been made under subsection 368(6) or (7) or 368B(3); or
in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
An application referred to in the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:section 477 or 477A may only be made by
if the migration decision concerned is made on review by application under Part 5 or section 500—the applicant in the review by the ART; or
in any other case—the person who is the subject of the decision; or
in any case—a person prescribed by the regulations.
The parties to a review of a migration decision resulting from an application referred to in the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:section 477 or 477A are
if the migration decision concerned is made on review by application under Part 5 or section 500—the applicant in the review by the ART; or
in any other case—the person who is the subject of the migration decision; or
in any case—a person prescribed by the regulations.
The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A.
If the Attorney-General intervenes in such a proceeding, the Federal Circuit and Family Court of Australia (Division 2) or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit.
If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
The making of an application referred to in section 477 or 477A does not:
affect the operation of the decision; or
prevent the taking of action to implement the decision; or
prevent the taking of action in reliance on the making of the decision.
If:
a person has, in the performance of the duties of an office, made a migration decision; and
the person no longer holds, or, for whatever reason, is not performing the duties of, that office;
this Part has effect as if the decision had been made by:
the person for the time being holding or performing the duties of that office; or
if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies.
Only the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have jurisdiction in relation to migration decisions.
To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), but to exclude other courts from jurisdiction in relation to migration decisions.
(3) To avoid doubt, despite Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.section 67C of the
(4) To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross-vesting) Act 1987.
An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).
If the Attorney-General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit.
If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
The making of an application referred to in section 486A does not:
affect the operation of the decision; or
prevent the taking of action to implement the decision; or
prevent the taking of action in reliance on the making of the decision.
Application of section
(1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens.
Consolidation of proceedings
Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:
the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and
the consolidation is desirable for the efficient conduct of the proceedings.
No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).
Other joint proceedings etc.
The following are not permitted in or by a migration proceeding:
representative or class actions;
joinder of plaintiffs or applicants or addition of parties;
a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.
Relationship with other laws
This section has effect despite any other law, including in particular:
(a) Federal Court of Australia Act 1976; andPart IVA of the
any Rules of Court.
However, this section does not apply to a provision of an Act if the provision:
commences after this section commences; and
specifically states that this section does not apply.
Exceptions to general rules
This section does not prevent the following persons from being involved in a migration proceeding:
the applicants in the proceeding and any persons they represent, if:
(i) the regulations set out a definition of family for the purposes of this paragraph; and
all of those applicants and other persons are members of the same family as so defined;
a person who becomes a party to the proceeding in performing the person’s statutory functions;
the Attorney-General of the Commonwealth or of a State or Territory;
any other person prescribed in the regulations.
Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court that raises an issue:
in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens; and
that relates to the validity, interpretation or effect of a provision of this Act or the regulations;
(whether or not the proceeding raises any other issue).
Those persons are:
a party to a review mentioned in section 479; or
the Attorney-General of the Commonwealth or of a State or a Territory; or
a person who commences or continues the proceeding in performing the person’s statutory functions; or
any other person prescribed by the regulations.
(3) This section applies to proceedings within the jurisdiction of the Federal Circuit and Family Court of Australia (Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.Division 2) under section 476 of this Act, section 44 of the
This section applies to:
proceedings:
(i) that are transferred to the Federal Court under Federal Circuit and Family Court of Australia Act 2021; andsection 153 of the
(ii) whose transfer are confirmed by the Federal Court under Federal Court of Australia Act 1976; andsection 32AD of the
proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).
(3B) To avoid doubt, this section does not apply to proceedings that are transferred to the Federal Court under Federal Court of Australia Act 1976.section 32AC of the
To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue.
Relationship with other laws
This section has effect despite any other law.
However, subsection (5) does not apply to a provision of an Act if the provision:
commences after this section commences; and
specifically states that it applies despite this section.
A person must not commence a proceeding in the Federal Circuit and Family Court of Australia (Division 2) in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
A person must not commence a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
In this section:
judicial review proceeding, in relation to a tribunal decision, means:
a proceeding in the Federal Circuit and Family Court of Australia (Division 2) in relation to the tribunal decision; or
a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review by the ART by application under Part 5 or section 500.
(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
the migration litigation has no reasonable prospect of success; and
either:
the person does not give proper consideration to the prospects of success of the migration litigation; or
a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
For the purposes of this section, migration litigation need not be:
hopeless; or
bound to fail;
for it to have no reasonable prospect of success.
This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:
an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;
an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation;
where the person is a lawyer who has acted for the litigant in the migration litigation:
an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;
an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.
If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made.
An order under this section may be made:
on the motion of the court; or
on the application of a party to the migration litigation.
The motion or application must be considered at the time the question of costs in the migration litigation is decided.
A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.
The court must not make an order under section 486F unless the person has been given a reasonable opportunity to argue why the order should not be made.
If, in proceedings to determine whether an order under section 486F should be made:
a person wishes to produce a document, record or information for the purpose of arguing why an order under section 486F should not be made; and
to do so would, but for this section, deny legal professional privilege to any person entitled to claim it;
the person may produce the document, record or information for that purpose.
However:
the document, record or information does not cease to be subject to legal professional privilege for any other purpose, or in any other circumstances; and
the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances.
Nothing in this section prevents a person who is entitled to claim legal professional privilege in relation to the document, record or information, from waiving that privilege.
In this section:
legal professional privilege includes privilege (however described) under any provision of Division 1 of Part 3.10 of the Evidence Act 1995.
A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
This Part does not limit any power a court may otherwise have to make costs orders against a person who is not a party to proceedings.
In this Part:
migration litigation means a court proceeding in relation to a migration decision.
For the purposes of this Part, the detention reporting start time for a person is whichever of the following times (if any) applies to the person:
if the person is in immigration detention on the commencement of this Part and has been in immigration detention before then for a period of at least 2 years, or for periods that total at least 2 years—the time when this Part commences; or
otherwise—the time after the commencement of this Part when the person has been in immigration detention for a period of 2 years, or for periods that total at least 2 years (some of which detention may have occurred before the commencement of this Part).
For the purposes of this Part, a detention reporting time for a person is:
the detention reporting start time for the person; or
the end of each successive period of 6 months after that time at the end of which the person is in immigration detention.
The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given:
if the detention reporting time is the time when this Part commences—as soon as practicable, and in any event within 6 months, after that commencement; or
otherwise—within 21 days after the detention reporting time.
Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection.
The Secretary must give the report to the Commonwealth Ombudsman even if the person has, since the detention reporting time, ceased to be in immigration detention.
Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements
As soon as practicable after the Commonwealth Ombudsman receives a report under the Minister an assessment of the appropriateness of the arrangements for the person’s detention.section 486N, he or she is to give
Assessment may include recommendations
The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate.
Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following:
a recommendation for the continued detention of a person;
a recommendation that another form of detention would be more appropriate for a person (for example, residing at a place in accordance with a residence determination);
a recommendation that a person be released into the community on a visa;
general recommendations relating to the Department’s handling of its detainee caseload.
The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.
Assessment to include statement for tabling in Parliament
The assessment must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the assessment as the Commonwealth Ombudsman considers can be tabled without adversely affecting the privacy of any person.
Assessment to be given even if person no longer in detention
The Commonwealth Ombudsman must give the assessment to the Minister even if the person has, since the detention reporting time, ceased to be in immigration detention.
The Minister must cause the statement included in an assessment as mentioned in subsection 486O(5) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the assessment.
(1) Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s preparation of an assessment under section 486O (including his or her consideration of the report under section 486N to which the assessment relates), as if the preparation of the assessment were an investigation under that Act.
The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.
Application for order
The Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
The Minister must make the application within 6 years of the alleged contravention.
Eligible court may order person to pay pecuniary penalty
If the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.
Note: Subsection (5) sets out the maximum penalty that the eligible court may order the person to pay.
(4) An order under subsection (3) is a civil penalty order.
Determining pecuniary penalty
The pecuniary penalty must not be more than:
if the person is a body corporate—5 times the amount of the pecuniary penalty specified for the civil penalty provision; and
otherwise—the amount of the pecuniary penalty specified for the civil penalty provision.
In determining the pecuniary penalty, the eligible court must take into account all relevant matters, including:
the nature and extent of the contravention; and
the nature and extent of any loss or damage suffered because of the contravention; and
the circumstances in which the contravention took place; and
whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and
whether the person has been issued with an infringement notice under regulations made for the purposes of section 506A in relation to the conduct constituting the contravention or any similar conduct; and
whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.
This section applies if an application for a civil penalty order against a person is made to an eligible court in relation to an alleged contravention of a civil penalty provision in Division 3A of Part 2.
Engaging in similar conduct
For the purposes of subsection 486R(6), the person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the application relates.
Subsection (2) does not limit the circumstances in which a person may be found to have engaged in similar conduct.
Order to pay a required amount
If, when determining the application, it appears to the eligible court that:
an amount of a kind prescribed in the regulations made for purposes of subsection 140S(1) is required to be paid by the person to the Commonwealth, a State or Territory or another person; and
the amount remains unpaid after the time for payment; and
proceedings to recover the amount have not been brought under section 140S;
the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).
Note: Section 140S allows a person to bring proceedings to recover an amount owed if the eligible court does not make an order under this subsection.
If the eligible court makes an order under subsection (4):
an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for a civil penalty order were proceedings under section 140S; and
section 140SB applies as if the amount ordered to be paid under subsection (4) of this section were a judgement debt under a judgement of an eligible court under section 140S.
A pecuniary penalty is a debt payable to the Commonwealth.
The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
An eligible court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
An eligible court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
An eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
A person commits an offence if:
the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
the person fails to comply with the request.
Penalty: 10 penalty units.
A request under subsection (1) is not a legislative instrument.
The Secretary can request a person to assist under subsection (1) only if:
it appears to the Secretary that the person is unlikely to have:
contravened the civil penalty provision to which the application relates; or
committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
the Secretary suspects or believes that the person can give information relevant to the application.
The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
An eligible court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the eligible court for an order under this subsection.
For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.
An eligible court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
criminal proceedings are commenced or have already been commenced against the person for an offence; and
the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
The proceedings for the civil penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and
the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
A person must not:
attempt to contravene a civil penalty provision; or
aid, abet, counsel or procure a contravention of a civil penalty provision; or
induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
conspire with others to effect a contravention of a civil penalty provision.
Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this section.
Civil penalty
A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.
A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
at or before the time of the conduct constituting the contravention, the person:
considered whether or not facts existed; and
was under a mistaken but reasonable belief about those facts; and
had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 245AK(2) or 245AU(2)), it is not necessary to prove:
the person’s intention; or
the person’s knowledge; or
the person’s recklessness; or
the person’s negligence; or
any other state of mind of the person.
Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 486ZD(1) (which is about ancillary contraventions of civil penalty provisions).
Subsection (1) of this section does not affect the operation of section 486ZE (which is about mistake of fact).
If a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct.
In this Part:
evidential material means:
in relation to a sponsorship-related offence or a work-related offence:
a thing with respect to which the offence has been committed or is reasonably suspected of having been committed; or
a thing that it is reasonably suspected will afford evidence as to the commission of the offence; or
a thing that is reasonably suspected of being intended to be used for the purpose of committing the offence; or
in relation to a contravention of a sponsorship-related provision or a work-related provision:
a thing with respect to which the provision has been contravened or is reasonably suspected of having been contravened; or
a thing that it is reasonably suspected will afford evidence as to the contravention of the provision; or
a thing that is reasonably suspected of being intended to be used for the purpose of contravening the provision.
issuing officer means:
a magistrate; or
a Judge of the Federal Circuit and Family Court of Australia (Division 2); or
a Judge of the Federal Court.
Note: For conferral of powers on an issuing officer, see section 487ZH.
occupier means the person apparently in charge of the vehicle or vessel.
person assisting has the meaning given by section 487H.
premises includes the following: a structure, building, vehicle or vessel; a place (whether or not enclosed or built on); a part of a thing referred to in paragraph (a) or (b).
a structure, building, vehicle or vessel;
a place (whether or not enclosed or built on);
a part of a thing referred to in paragraph (a) or (b).
related provision means:
a sponsorship-related offence; or
a sponsorship-related provision; or
a work-related offence; or
a work-related provision.
search powers has the meaning given by sections 487E, 487F and 487G.
search warrant means:
a warrant issued by an issuing officer under section 487ZC; or
a warrant signed by an issuing officer under section 487ZD.
sponsorship-related offence means:
an offence against Subdivision D of Division 12 of Part 2; or
(b) an offence against Crimes Act 1914 that relates to an offence against that Subdivision; orsection 6 of the
(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against that Subdivision.
sponsorship-related provision means a civil penalty provision in Subdivision D of Division 12 of Part 2.
If the Secretary or Australian Border Force Commissioner has reason to believe that a person has information or a document that is relevant to:
a possible sponsorship-related offence; or
a possible contravention of a sponsorship-related provision; or
a possible work-related offence; or
a possible contravention of a work-related provision;
the Secretary or Australian Border Force Commissioner may, by written notice given to the person, require the person to give the information, or to produce the document, to an authorised officer.
Content of notice
The notice must:
specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and
specify how the information or document must be given; and
(c) set out the effect of subsection (3) and sections 137.1 and 137.2 of the Criminal Code.
Offence
A person commits an offence if:
the person is given a notice under subsection (1); and
the person fails to comply with the notice.
Penalty: 30 penalty units.
An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
Subsection (3) does not apply to the extent that the person is not capable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
A person is not excused from giving information or producing a document under section 487B on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.
However, in the case of an individual:
the information given or document produced; and
giving the information or producing the document; and
any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;
are not admissible in evidence against the individual:
(d) in criminal proceedings (other than proceedings for an offence against Criminal Code that relates to Subdivision C or D of Division 12 of Part 2 of this Act); orsection 137.1 or 137.2 of the
in civil proceedings (other than proceedings for a civil penalty order for an alleged contravention of a sponsorship-related provision or a work-related provision).
Subdivision A—Search powers
If an authorised officer reasonably suspects that there may be evidential material on any premises, the authorised officer may:
enter the premises; and
exercise the search powers.
However, an authorised officer is not authorised to enter the premises unless:
the occupier of the premises has consented to the entry and the authorised officer has shown his or her identity card if required by the occupier; or
the entry is made under a search warrant.
Note: If entry to the premises is with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect (see section 487L).
The following are the search powers that an authorised officer may exercise in relation to premises under section 487D:
if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the authorised officer reasonably suspects may be on the premises;
if entry to the premises is under a search warrant:
the power to search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant; and
the power to seize evidential material of that kind if the authorised officer finds it on the premises;
the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b);
the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b);
the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;
the powers set out in subsections 487F(1) and (2) and section 487G.
(1) The search powers include the power to operate electronic equipment on the premises if the authorised officer reasonably suspects that:
the equipment; or
a disk, tape or other storage device that:
is on the premises; and
can be used with the equipment or is associated with it;
contains evidential material referred to in paragraph 487E(a) or (b).
(2) The search powers include the following powers in relation to evidential material described in subsection (1) found in the exercise of the power under that subsection:
if entry to the premises is under a search warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;
the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;
the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:
is brought to the premises for the exercise of the power; or
is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
An authorised officer may operate electronic equipment as mentioned in subsection (1) or (2) only if the authorised officer reasonably believes that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 487T.
An authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if:
it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or
possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth.
This section applies if an authorised officer enters premises under a search warrant to search for evidential material.
(2) The search powers include seizing a thing that is not evidential material of the kind specified in the warrant if:
in the course of searching for the kind of evidential material specified in the warrant, the authorised officer finds the thing; and
the authorised officer reasonably believes that:
a related provision has been contravened with respect to the thing; or
the thing is evidence of the contravention of a related provision; or
the thing is intended to be used for the purpose of contravening a related provision; and
the authorised officer reasonably believes that it is necessary to seize the thing in order to prevent its concealment, loss or destruction.
Authorised officers may be assisted by other persons
(1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties under this Division, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised officer.
Powers of a person assisting the authorised officer
A person assisting the authorised officer:
may enter the premises; and
may exercise powers and perform functions and duties under this Division in relation to evidential material; and
must do so in accordance with a direction given to the person assisting by the authorised officer.
A power exercised by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.
A function or duty performed by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.
If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.
In executing a search warrant, an authorised officer, or a person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances.
Subdivision B—Powers of authorised officers to ask questions and seek production of documents
Entry with consent
If an authorised officer is authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:
answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and
produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.
Entry under a search warrant
If an authorised officer is authorised to enter premises by a search warrant, the authorised officer may require any person on the premises to:
answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and
produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.
Offence
A person commits an offence if:
the person is subject to a requirement under subsection (2); and
the person fails to comply with the requirement.
Penalty for contravention of this subsection: 30 penalty units.
Subdivision C—Obligations and incidental powers of authorised officers
Before obtaining the consent of an occupier of premises for the purposes of paragraph 487D(2)(a), an authorised officer must inform the occupier that the occupier may refuse consent.
A consent has no effect unless the consent is voluntary.
A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
If an authorised officer has entered premises because of the consent of the occupier of the premises, the authorised officer, and any person assisting the authorised officer, must leave the premises if the consent ceases to have effect.
Before entering premises under a search warrant, an authorised officer must:
announce that he or she is authorised to enter the premises; and
show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
give any person at the premises an opportunity to allow entry to the premises.
However, an authorised officer is not required to comply with subsection (1) if the authorised officer reasonably believes that immediate entry to the premises is required:
to ensure the safety of a person; or
to ensure that the effective execution of the search warrant is not frustrated.
If:
an authorised officer does not comply with subsection (1) because of subsection (2); and
the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the authorised officer must show his or her identity card to the occupier or other person, as soon as practicable after entering the premises.
An authorised officer who is executing a search warrant must be in possession of:
the search warrant issued by the issuing officer under section 487ZC, or a copy of the warrant as so issued; or
the form of search warrant completed under subsection 487ZD(6), or a copy of the form as so completed.
An authorised officer must comply with subsection (2) if:
a search warrant is being executed in relation to premises; and
the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.
The authorised officer must, as soon as practicable:
do one of the following:
if the search warrant was issued under section 487ZC—make a copy of the warrant available to the occupier or other person (which need not include the signature of the issuing officer who issued it);
if the search warrant was signed under section 487ZD—make a copy of the form of warrant completed under subsection 487ZD(6) available to the occupier or other person; and
inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision D.
This section applies if an authorised officer, and all persons assisting, who are executing a search warrant in relation to premises temporarily cease its execution and leave the premises.
The authorised officer, and persons assisting, may complete the execution of the search warrant if:
the warrant is still in force; and
the authorised officer and persons assisting are absent from the premises:
for not more than 1 hour; or
if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under subsection (5); or
for a longer period if the occupier of the premises consents in writing.
Application for extension in emergency situation
An authorised officer, or person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned in subparagraph (2)(b)(ii) if:
there is an emergency situation; and
the authorised officer or person assisting reasonably believes that the authorised officer and the persons assisting will not be able to return to the premises within that period.
If it is practicable to do so, before making the application, the authorised officer or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.
Extension in emergency situation
An issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if:
an application is made under subsection (3); and
the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
the extension would not result in the period ending after the search warrant ceases to be in force.
An authorised officer, and any persons assisting, may complete the execution of a search warrant that has been stopped by an order of a court if:
the order is later revoked or reversed on appeal; and
the warrant is still in force when the order is revoked or reversed.
This section applies if an authorised officer enters premises under a search warrant.
Securing equipment
The authorised officer may do whatever is necessary to secure any electronic equipment that is on premises if the authorised officer reasonably believes that:
there is on the premises evidential material of the kind specified in the search warrant; and
that evidential material may be accessible by operating the equipment; and
expert assistance is required to operate the equipment; and
the evidential material may be destroyed, altered or otherwise interfered with, if the authorised officer does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
The authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
the authorised officer’s intention to secure the equipment; and
the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
The equipment may be secured until the earlier of the following happens:
the 24-hour period ends;
the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 487T.
Extensions
The authorised officer may apply to an issuing officer for an extension of the 24-hour period if the authorised officer reasonably believes that the equipment needs to be secured for longer than that period.
Before making the application, the authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised officer’s intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
The provisions of this Division relating to the issue of search warrants apply, with such modifications as are necessary, to the issue of an extension.
The 24-hour period may be extended more than once.
This section applies if:
as a result of electronic equipment being operated as mentioned in this Division:
damage is caused to the equipment; or
the data recorded on the equipment is damaged; or
programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
the damage or corruption occurs because:
insufficient care was exercised in selecting the person who was to operate the equipment; or
insufficient care was exercised by the person operating the equipment.
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
In this section:
damage, in relation to data, includes damage by erasure of data or addition of other data.
Subdivision D—Occupier’s rights and responsibilities
The occupier, or another person who apparently represents the occupier, is entitled to observe the execution of a search warrant if the occupier or other person is present at the premises while the warrant is being executed.
The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.
This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.
The occupier of premises to which a search warrant relates, or another person who apparently represents the occupier, must provide:
an authorised officer executing the warrant; and
any person assisting the authorised officer;
with all reasonable facilities and assistance for the effective exercise of their powers, and the effective performance of their functions and duties.
Offence
A person commits an offence if:
the person is subject to subsection (1); and
the person fails to comply with that subsection.
Penalty for contravention of this subsection: 30 penalty units.
Subdivision E—General provisions relating to seizure
This section applies if:
a search warrant is being executed in relation to premises; and
an authorised officer seizes one or more of the following from the premises under this Division:
a document, film, computer file or other thing that can be readily copied;
a storage device, the information in which can be readily copied.
The occupier of the premises, or another person who apparently represents the occupier and who is present when the search warrant is executed, may request the authorised officer to give a copy of the thing or the information to the occupier or other person.
The authorised officer must comply with such a request as soon as practicable after the seizure.
However, the authorised officer is not required to comply with such a request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.
An authorised officer must provide a receipt for a thing that is seized under this Division.
One receipt may cover 2 or more things that are seized.
The Secretary or Australian Border Force Commissioner must take reasonable steps to return a thing seized under this Division when the earliest of the following happens:
the reason for the thing’s seizure no longer exists;
it is decided that the thing is not to be used in evidence;
the period of 60 days after the thing’s seizure ends.
Note: See subsections (2) and (3) for exceptions to this rule.
Exceptions
Subsection (1):
is subject to any contrary order of a court; and
does not apply if the thing:
is forfeited or forfeitable to the Commonwealth; or
is the subject of a dispute as to ownership.
The Secretary or Australian Border Force Commissioner is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:
proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
the thing may continue to be retained because of an order under section 487Z; or
the Commonwealth, the Secretary, the Australian Border Force Commissioner or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
Return of thing
A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
Application to retain seized thing
The Secretary or Australian Border Force Commissioner may apply to an issuing officer for an order permitting the retention of a thing seized under this Division for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:
60 days after the seizure; or
a period previously specified in an order of an issuing officer under this section.
Before making the application, the Secretary or Australian Border Force Commissioner must:
take reasonable steps to discover who has an interest in the retention of the thing; and
if it is practicable to do so, notify each person whom the Secretary or Australian Border Force Commissioner believes to have such an interest of the proposed application.
Order to retain seized thing
The issuing officer may order that the thing may continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the thing to continue to be retained:
for the purposes of investigating whether:
a sponsorship-related offence has been committed; or
a sponsorship-related provision has been contravened; or
a work-related offence has been committed; or
a work-related provision has been contravened; or
to enable evidence of such an offence or contravention to be secured for the purposes of a prosecution or action.
The period specified must not exceed 3 years.
The Secretary or Australian Border Force Commissioner may dispose of a thing seized under this Division if:
the Secretary or Australian Border Force Commissioner has taken reasonable steps to return the thing to a person; and
either:
the Secretary or Australian Border Force Commissioner has been unable to locate the person; or
the person has refused to take possession of the thing.
The Secretary or Australian Border Force Commissioner may dispose of the thing in any manner that he or she thinks appropriate.
If the operation of section 487ZA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Subdivision F—Issue of search warrants
Application for search warrant
An authorised officer may apply to an issuing officer for a search warrant under this section in relation to premises.
Issue of search warrant
The issuing officer may issue the search warrant if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.
However, the issuing officer must not issue the search warrant unless the authorised officer or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
Content of search warrant
The search warrant must:
state:
the sponsorship-related offence or offences; or
the sponsorship-related provision or provisions; or
the work-related offence or offences; or
the work-related provision or provisions;
to which the warrant relates; and
describe the premises to which the warrant relates; and
state that the warrant is issued under this Subdivision; and
specify the kind of evidential material that is to be searched for under the warrant; and
state that the evidential material specified, and any other evidential material found in the course of executing the warrant, may be seized under the warrant; and
name one or more authorised officers; and
authorise the authorised officers named in the warrant:
to enter the premises; and
to exercise the powers set out in this Division in relation to the premises; and
state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.
Application for search warrant
An authorised officer may apply to an issuing officer by telephone, fax or other electronic means for a search warrant under section 487ZC in relation to premises:
in an urgent case; or
if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
The issuing officer may require communication by voice to the extent that it is practicable in the circumstances.
Before applying for the search warrant, the authorised officer must prepare an information of the kind mentioned in subsection 487ZC(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the authorised officer may apply for the warrant before the information is sworn or affirmed.
Issuing officer may complete and sign search warrant
The issuing officer may complete and sign the same search warrant that would have been issued under section 487ZC if the issuing officer is satisfied that there are reasonable grounds for doing so:
after considering the terms of the information; and
after receiving such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
After completing and signing the search warrant, the issuing officer must inform the authorised officer, by telephone, fax or other electronic means, of:
the terms of the warrant; and
the day on which, and the time at which, the warrant was signed.
Obligations on authorised officer
The authorised officer must then do the following:
complete a form of search warrant in the same terms as the warrant completed and signed by the issuing officer;
state on the form the following:
the name of the issuing officer;
the day on which, and the time at which, the search warrant was signed;
send the following to the issuing officer:
the form of search warrant completed by the authorised officer;
the information referred to in subsection (3), which must have been duly sworn or affirmed.
The authorised officer must comply with paragraph (6)(c) by the end of the day after the earlier of the following:
the day on which the search warrant ceases to be in force;
the day on which the search warrant is executed.
Issuing officer to attach documents together
The issuing officer must attach the documents provided under paragraph (6)(c) to the search warrant signed by the issuing officer.
A form of search warrant duly completed under subsection 487ZD(6) is authority for the same powers as are authorised by the search warrant signed by the issuing officer under subsection 487ZD(4).
In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a search warrant under section 487ZD if:
it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and
the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence.
An authorised officer must not:
state in a document that purports to be a form of search warrant under section 487ZD the name of an issuing officer unless that issuing officer signed the warrant; or
state on a form of search warrant under that section a matter that, to the authorised officer’s knowledge, departs in a material particular from the terms of the warrant signed by the issuing officer under that section; or
purport to execute, or present to another person, a document that purports to be a form of search warrant under that section that the authorised officer knows departs in a material particular from the terms of a warrant signed by an issuing officer under that section; or
give to an issuing officer a form of search warrant under that section that is not the form of search warrant that the authorised officer purported to execute.
Penalty: Imprisonment for 2 years.
Subdivision G—Identity cards
The Secretary or Australian Border Force Commissioner must issue an identity card to an authorised officer for the purposes of this Division.
Identity card must be carried by authorised officer
An authorised officer must carry his or her identity card at all times when exercising powers as an authorised officer under this Division.
Form of identity card
The identity card must:
be in the form approved by the Secretary or Australian Border Force Commissioner; and
contain a recent photograph of the authorised officer.
Offence
A person commits an offence if:
the person has been issued with an identity card under subsection (1); and
the person ceases to be an authorised officer; and
the person does not, as soon as practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner.
Penalty: 1 penalty unit.
An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
Subsection (4) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
Subdivision H—Powers of issuing officers
Powers conferred personally
A power conferred on an issuing officer by this Division is conferred on the issuing officer:
in a personal capacity; and
not as a court or a member of a court.
Powers need not be accepted
The issuing officer need not accept the power conferred.
Protection and immunity
An issuing officer exercising a power conferred by this Division has the same protection and immunity as if the issuing officer were exercising the power:
as the court of which the issuing officer is a member; or
as a member of the court of which the issuing officer is a member.
(1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided.
A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.
If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).
The notice must:
identify the document; and
state that the document has been seized; and
specify the reason for the seizure; and
state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
to recover the document; or
for a declaration that the document is not forfeited.
For the purposes of paragraph (3)(d), the period must:
start on the date of the notice; and
end 90 days after that date.
If a document is seized under subsection 487ZJ(1), then:
the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
if that person is not the owner of the document—the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
to recover the document; or
for a declaration that the document is not forfeited.
The proceedings:
may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and
may only be instituted before the end of the period specified in the seizure notice.
If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
an order for the person or owner to recover the document; or
a declaration that the document is not forfeited.
For the purposes of subsection (4), if the proceedings go to judgment, they end:
if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
If, under the Minister under section 499.section 487ZK, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by
If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:
must give a direction under section 499 for the safe keeping of the document; and
must authorise access to the document for the purposes of those proceedings.
No civil or criminal liability is incurred, by a person who carries out or helps to carry out an identification test under this Act, in respect of a thing done by the person if:
it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and
the person believed on reasonable grounds that the identification test was carried out in accordance with this Act.
Note: This section does not provide any protection in respect of action taken maliciously.
A person must not:
read; or
examine; or
reproduce by any means; or
use; or
disclose by any means;
any part of the movement records, otherwise than in accordance with an authority given under subsection (2).
Penalty: Imprisonment for 2 years.
The Minister may:
authorise an officer to perform for the purposes of one or more of the following:
this Act;
(ii) the Family Law Act 1975;
a law relating to customs or excise;
(iv) a law relating to biosecurity risks (within the meaning of the Biosecurity Act 2015), quarantine or health;
law enforcement;
(vi) the Education Services for Overseas Students Act 2000;
prescribed Commonwealth, State or Territory legislation;
one or more of the actions prohibited by subsection (1); or
authorise an officer, for the purpose of making a movement record available to, and for the use of:
the person to whom the record relates; or
the duly appointed agent of that person;
to perform one or more of those actions; or
(b) authorise an officer of the Attorney-General’s Department to perform for the purposes of the Family Law Act 1975 one or more of those actions; or
(c) authorise an officer of Customs, within the meaning of the Customs Act 1901, to perform for the purposes of a law relating to customs or excise one or more of those actions; or
(d) authorise a biosecurity officer (within the meaning of the Biosecurity Act 2015) to perform for the purposes of a law relating to biosecurity risks (within the meaning of that Act), or a law relating to quarantine or health, one or more of those actions; or
authorise a member of the Australian Federal Police to perform for the purposes of law enforcement one or more of those actions; or
(f) authorise an employee of the Department whose Minister administers the Education Services for Overseas Students Act 2000 to perform for the purposes of that Act one or more of those actions; or
authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for prescribed purposes one or more of those actions.
Authority under subsection (2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only.
Subsection (1) does not apply in relation to the performance of an action referred to in that subsection for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: An IGIS official does not bear an evidential burden in relation to a matter in this subsection (see Inspector-General of Intelligence and Security Act 1986).section 34C of the
A person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not:
delete, alter or add to any part of the movement records;
alter any computer program connected with making, transferring or keeping movement records; or
in any other way tamper with a notified data base.
Penalty: Imprisonment for 10 years.
For the purposes of:
assisting with the regulation of providers; or
promoting compliance with the conditions of a particular student visa or visas, or of student visas generally;
the Secretary may give information obtained or received for the purposes of this Act to an agency of the Commonwealth, or of a State or Territory, that is responsible for or otherwise concerned with the regulation of providers.
However, subsection (1) does not override section 488.
Note: Section 488 prohibits the disclosure etc. of movement records except in limited circumstances.
In this section:
provider has the same meaning as in the Education Services for Overseas Students Act 2000.
This section applies to the following:
(a) a thing seized (warrant material) under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914;
(b) information (warrant information) that is about, or obtained from, warrant material.
(2) A constable or Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant material, is authorised to make available warrant material or warrant information:
to a person covered by subsection (4); and
for a purpose mentioned in subsection (3).
A person covered by subsection (4) is authorised to receive and use warrant material and warrant information, or make it available to another person covered by subsection (4), for the following purposes:
making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
making a decision, or assisting in making a decision, to cancel a visa;
making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
making a decision in relation to the detention, removal or deportation of a non-citizen from Australia.
Note: Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may require or authorise the use or making available of a document or other thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.
The following persons are covered by this subsection:
the Minister;
an officer, including the Secretary.
An airline operator, a shipping operator, a travel agent or a prescribed organisation may, for any purpose that is likely to facilitate the administration or enforcement of this Act or the regulations, disclose to an officer information about any matter relating to travel:
that has been, is being, or is proposed to be, undertaken by any person on the way (directly or indirectly) to the migration zone; or
that has been, is being, or is proposed to be, undertaken and that involves the departure from the migration zone of any person;
even if the information is personal information.
To avoid doubt, this section does not:
require anyone to disclose information; or
affect a requirement of, or under, a provision of this Act or the regulations for a person to disclose information (whether by answering a question, by providing a document or by other means).
In this section:
officer includes a person who is a clearance officer within the meaning of section 165.
organisation has the same meaning as in the Privacy Act 1988.
travel agent includes an organisation that is involved in arranging or facilitating travel.
The Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section.
Where the Minister revokes the approval of a form of identification card in relation to members of the crews of vessels, an identification card in accordance with that form signed by the master of a vessel not later than 3 months after the date of that revocation shall, notwithstanding that revocation, be deemed, for the purposes of this Act, to continue to be an identification card in accordance with a form approved by the Minister.
Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.
A prosecution of a person for an offence against section 234, 236 or 243 that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
A prosecution for an offence:
against section 232A, 233 or 233A of this Act as in force before the commencement of this subsection; and
(b) alleged to have been committed after the commencement of the Migration Legislation Amendment Act (No. 1) 1999;
may be instituted at any time.
A prosecution for an offence against section 233A, 233B, 233C, 233D, 233E or 234A that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
that the director, employee or agent had the state of mind.
Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
that the employee or agent had the state of mind.
Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
Where:
a person other than a body corporate is convicted of an offence; and
the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
the knowledge, intention, opinion, belief or purpose of the person; and
the person’s reasons for the intention, opinion, belief or purpose.
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
(1) A provision of the Judiciary Act 1903 by which a court of a State is invested with jurisdiction with respect to offences against the laws of the Commonwealth has effect, in relation to offences against this Act, as if that jurisdiction were so invested without limitation as to locality other than the limitation imposed by section 80 of the Constitution.
Subject to section 80 of the Constitution, where a person has committed an offence against a provision of this Act outside a Territory and is found in, or brought into, the Territory, a court of the Territory has the same jurisdiction in respect of the offence as it would have if the offence had been committed in the Territory.
The trial of an offence against a provision of this Act not committed within a State may be held by a court of competent jurisdiction at any place where the court may sit.
The following proceedings against the Commonwealth may not be instituted or continued in any court:
proceedings relating to an unauthorised entry by an unauthorised maritime arrival;
proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during any part of the ineligibility period;
proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non-citizen;
proceedings relating to the exercise of powers under repealed section 198A;
proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an unauthorised maritime arrival.
This section has effect despite anything else in this Act or any other law.
Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
In this section:
Commonwealth includes:
an officer of the Commonwealth; and
any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen.
unauthorised entry means an entry into Australia that occurs:
at an excised offshore place after the excision time for that place; or
at any other place on or after the commencement of section 5AA.
The following proceedings against the Commonwealth may not be instituted or continued in any court:
proceedings relating to the exercise of powers under section 198B;
proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;
proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;
proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person;
proceedings relating to the removal of a transitory person from Australia under this Act.
This section has effect despite anything else in this Act or any other law.
Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
In this section:
Commonwealth includes:
an officer of the Commonwealth; and
any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.
If:
a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
the provision does not state that the document must be given:
by one of the methods specified in section 494B; or
by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.
If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
the individual has day-to-day care and responsibility for the minor; or
the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
This section does not apply to the giving of any of the following documents:
a document relating to the proposed cancellation of a visa;
a document relating to the cancellation of a visa;
a document relating to the revocation of the cancellation of a visa;
a document relating to a decision not to revoke the cancellation of a visa.
Note 1: The Minister must give a person a document mentioned in this subsection in the way prescribed by the regulations for the document (see, for example, subsections 119(2), 127(2A) and 501G(3) and paragraph 504(1)(e)).
Note 2: For the giving of such a document to the person’s authorised recipient, see section 494D.
Coverage of section
For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Minister may use the method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available a document to an individual (a carer of the minor):
who is at least 18 years of age; and
who the Minister reasonably believes:
has day-to-day care and responsibility for the minor; or
works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4), (5) or (5A), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
appears to live there (in the case of a residential address) or work there (in the case of a business address); and
appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
Another method consists of the Minister dating the document, and then dispatching it:
within 3 working days (in the place of dispatch) of the date of the document; and
by prepaid post or by other prepaid means; and
to:
the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
Transmission by fax, email or other electronic means
Another method consists of the Minister transmitting the document by:
fax; or
email; or
other electronic means;
to:
the last fax number, email address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents; or
if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Making document available by way of online account
Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.
When the Minister hands a document by way of an authorised officer
For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
Giving by hand
If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Making document available by way of online account
If the Minister gives a document to a person by the method in subsection 494B(5A) (which involves making the document available by way of an online account), the person is taken to have received the document at the end of the day on which it is made available.
Document not given effectively
If:
(a) the Minister purports to give a document to a person in accordance with a method (the relevant method) specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
the person nonetheless receives the document or a copy of it;
then, despite the error:
the document is taken to have been given in accordance with the relevant method; and
the person is taken to have received the document:
at the time mentioned in this section for the relevant method; or
if the person can show that the person received the document at a later time—at that later time.
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
The Minister need not comply with subsection (1) if:
the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
This section applies in relation to a document if:
a provision of this Act or the regulations requires or permits the Minister to give the document to a person; and
(b) a provision of this Act or the regulations requires (the content requirements) the document to include particular information.
For the purposes of this Act or the regulations, the document is taken to comply with the content requirements if:
there is substantial compliance with those requirements; and
the failure to strictly comply with those requirements does not, or is not likely to, cause substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
Subsection (2) applies despite any other provision of this Act or the regulations.
Without limiting paragraph (2)(a), there may be substantial compliance with the content requirements even if there is an error, omission, misstatement or misdescription in the document.
Without limiting paragraph (2)(b), a failure by the person to:
exercise any rights (including, but not limited to, rights to seek review) in connection with the matter to which the document relates; or
take any other action (including, but not limited to, the making of representations) in connection with the matter to which the document relates;
is not on its own to be taken to imply that the failure to strictly comply with the content requirements has caused substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misstates the period. The correct period is 28 days after the notice is received by the applicant.
Andrew makes an application for review of the refusal decision 25 days after receiving the notice. As the misstatement in the notice does not cause substantial prejudice to Andrew’s right to seek review, it is intended that subsection (2) would apply in relation to the notice given to Andrew.
George makes an application for review of the refusal decision 29 days after receiving the notice. The misstatement in the notice causes substantial prejudice to George’s right to seek review as the application for review is not made within the required period but is made within the misstated period specified in the notice. It is intended that subsection (2) would not apply in relation to the notice given to George.
Daniel makes an application for review of the refusal decision 40 days after receiving the notice. The misstatement in the notice does not cause substantial prejudice to Daniel’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to Daniel.
The notice states that Anne may make an application for review of the refusal decision within 21 days after the day Anne receives the notice. The notice does not explain that the effect of sections 494C and 494D is that the period of 21 days begins to run on the day after the day the notice is received by the authorised recipient, rather than by Anne.
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misdescribes when that period begins to run.
Anne makes an application for review of the refusal decision 35 days after receiving the notice. The misdescription in the notice does not cause substantial prejudice to Anne’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to the authorised recipient.
Example 1: Andrew, George and Daniel each make an application for the grant of a visa. The Minister refuses to grant each applicant the visa and gives notice of the refusal decision to each applicant. The notice states that the applicant may make an application for review of the refusal decision within 30 days after the notice is received by the applicant.
Example 2: Anne applies for a visa and has an authorised recipient under The Minister refuses to grant Anne the visa and gives notice of the refusal decision by sending an email to the authorised recipient. The authorised recipient receives the notice and 2 days later forwards it on to Anne.section 494D.
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:
make a decision; or
exercise any power, or comply with any obligation; or
do anything else related to making a decision, exercising a power, or complying with an obligation.
The Minister is taken to have:
made a decision; or
exercised a power, or complied with an obligation; or
done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;
that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).
(3) For the purposes of this section, the following provisions are the designated migration law:
Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);
section 257A;
any provision of this Act or of the regulations that the Minister, by legislative instrument, determines to be part of the designated migration law.
(1) The Minister may substitute a decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under an arrangement made under subsection 495A(1) if:
a certificate under paragraph 271(1)(l) relates to the computer program and to the initial decision; and
the certificate states that the computer program was not functioning correctly; and
the substituted decision could have been made under the same provision of the designated migration law as the initial decision; and
the substituted decision is more favourable to the applicant.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
Subsection (1) has effect despite:
any law of the Commonwealth; or
any rule of common law;
to the contrary effect.
The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.
The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.
The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act.
If an application for a visa that has a health criterion is made, the Minister may:
delegate to a person the power to consider and decide whether that criterion is satisfied; and
consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application.
To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:
Subdivision AB of Division 3 of Part 2 has effect accordingly; and
for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion for the visa has been satisfied if the delegate who was given that delegation is so satisfied or not so satisfied, as the case may be.
Subsection (1A) does not limit subsection 499(1).
If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.
If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
Nothing in subsection (1) or (2) shall be taken to imply that:
a person on whom a power is conferred by or under this or any other Act; or
a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.
Nothing in this section shall be taken to limit the operation of subsection 29(4).
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
the performance of those functions; or
the exercise of those powers.
For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
A person or body must comply with a direction under subsection (1).
The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
Subsection (1) does not limit subsection 496(1A).
An application may be made to the ART for review of:
decisions of the Minister under section 200 because of circumstances specified in section 201, other than decisions to which a certificate under section 502 applies; or
decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or
a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:
subsection 5H(2) or 36(1C); or
paragraph 36(2C)(a) or (b) of this Act.
Section 85 (ART may remit decision to decision-maker for reconsideration) of the ART Act does not apply in relation to a review by the ART of a decision referred to in subsection (1).
A person is not entitled to make an application under paragraph (1)(a) unless:
the person is an Australian citizen; or
the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.
A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision by application under Part 5 if the decision had been made on another ground.
The following decisions are not reviewable by application under Part 5:
a decision under section 200 because of circumstances specified in section 201;
a decision under section 501;
a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:
subsection 5H(2) or 36(1C); or
paragraph 36(2C)(a) or (b) of this Act.
The following decisions are not reviewable under this section, or by application under Part 5:
a decision to refuse to grant a protection visa relying on subsection 36(1B);
(b) a decision to cancel a protection visa because of an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (Australian Security Intelligence Organisation Act 1979);within the meaning of section 4 of the
a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.
Where an application has been made to the ART for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by:
the ART (for example, an order under subsection 32(2) (ART may stay operation or implementation) of the ART Act); or
the Federal Court of Australia or a Judge of that Court under subsection 178(2) of that Act; or
the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court under subsection 178(2) of that Act, as it applies because of subsection 179(4) of that Act.
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply to the decision.
If a decision under within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, sections 18 and 19 of the ART Act do not apply to the application.section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the ART for a review of the decision must be lodged with the ART
If a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the ART for a review of the decision must be accompanied by, or by a copy of:
the document notifying the person of the decision in accordance with subsection 501G(1); and
one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.
(6CA) Subsection (6C) applies despite subsection 34(2) of the ART Act.
(6CB) A failure to comply with subsection (6C) in relation to an application does not affect the validity of the application.
If an application is made to the ART for a review of a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, that relates to a person in the migration zone:
the ART must give written notice of the application to:
the applicant; and
the Secretary; and
sections 21 and 23 of the ART Act do not apply to the decision or the application.
If:
an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone;
then:
the Minister must lodge with the ART, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document that:
is in the Minister’s possession or under the Minister’s control; and
was relevant to the making of the decision; and
contains non-disclosable information; and
the ART may have regard to that non-disclosable information for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the person making the application.
(6FA) The ART may direct the Minister to lodge a specified number of additional copies of a document to which paragraph (6F)(c) applies within the period mentioned in that paragraph. The Minister must comply with the direction.
(6FB) Sections 24 and 26 of the ART Act do not apply in relation to an application to the ART for a review of a decision under section 501 or subsection 501CA(4) of this Act.
If:
an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone;
the ART must not:
hold a hearing (other than a directions hearing); or
make a decision under section 105 of the ART Act;
in relation to the decision under review until at least 14 days after the day on which the Minister was notified that the application had been made.
If:
an application is made to the ART for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone;
the ART must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the ART holds a hearing (other than a directions hearing) in relation to the decision under review.
If:
an application is made to the ART for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone;
the ART must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the ART holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or ART under subsection 501G(2) or subsection (6F) of this section.
If:
an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone; and
the ART is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review;
then:
the ART may cause to be served on the Minister a notice in writing stating that the ART is of that opinion and requiring the Minister to lodge with the ART, within a time specified in the notice, a copy, or the number of copies specified in the notice, of each of those documents that is in the Minister’s possession or under the Minister’s control; and
the Minister must comply with any such notice.
If:
an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
the decision relates to a person in the migration zone; and
the ART has not made a decision under the provisions of the ART Act mentioned in subsection (6M) in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the ART is taken, at the end of that period, to have made a decision under section 105 of the ART Act to affirm the decision under review.
For the purposes of paragraph (6L)(c), the provisions of the ART Act are as follows:
section 95 (applicant may withdraw application);
section 96 (Tribunal may dismiss application if parties consent);
section 97 (Tribunal must dismiss application if decision is not reviewable decision);
section 98 (Tribunal may dismiss application if fee is not paid);
section 99 (Tribunal may dismiss application if applicant does not appear);
section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
section 101 (Tribunal may dismiss application if frivolous, vexatious etc);
section 103 (if parties reach agreement—review of decisions only);
section 105 (Tribunal decision on review of reviewable decision).
(7) In this section, decision has the same meaning as in the ART Act.
In this section:
business day means a day that is not:
a Saturday; or
a Sunday; or
a public holiday in the Australian Capital Territory; or
a public holiday in the place concerned.
An application cannot be made under section 123 of the ART Act to refer a decision of the ART to the guidance and appeals panel in relation to an application for review of a decision under this Act.
Subsection (1) does not apply in relation to an application for review of a decision under Part 3.
Refusal or cancellation of temporary safe haven visas
The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if, in the Minister’s opinion:
the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
subsection (1A) applies to the person (spreading hatred and extremism); or
having regard to either or both of the following:
the person’s past and present criminal conduct;
the person’s past and present general conduct;
the person is not of good character; or
in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person might:
engage in criminal conduct in Australia; or
harass, molest, intimidate or stalk another person in Australia (see subsection (2)); or
vilify a segment of the Australian community; or
incite discord in the Australian community or in a segment of that community; or
represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
the person is a threat to national security; or
the person’s presence in Australia would prejudice Australia’s international relations.
Spreading hatred and extremism
This subsection applies to a person if the Minister reasonably suspects that:
both of the following apply:
the person is, or has been, a member of an organisation;
at any time the person was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or
all of the following apply:
the person has, or has had, an association with an organisation;
at any time during the person’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;
the person intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or
the person has been or is involved in conduct constituting a hate crime (whether or not the person, or another person, has been convicted of an offence constituted by the conduct); or
both of the following apply:
the person has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or
both of the following apply:
the person has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.
Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).
Note 2: See also subsection 5(1) for definitions of terms used in this subsection.
Limbs do not limit each other
(1B) None of the limbs of the grounds for refusal or cancellation of a temporary safe haven visa are intended to limit or otherwise affect each other.
Minister not required to determine whether membership or association is ongoing
The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (1A)(a) or (b).
For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though:
it does not involve violence, or threatened violence, to the person; or
it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Refusal or cancellation of temporary safe haven visas
The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if:
the person has been sentenced to death (see subsection (4)); or
the person has been sentenced to imprisonment for life (see subsection (4)); or
the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)); or
the person has been convicted of an offence that was committed:
while the person was in immigration detention; or
during an escape by the person from immigration detention; or
after the person escaped from immigration detention but before the person was taken into immigration detention again; or
the person has been convicted of an offence against section 197A.
For the purposes of subsection (3), a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
the conviction concerned has been quashed or otherwise nullified; or
the person has been pardoned in relation to the conviction concerned.
For the purposes of subsection (3), if a person has been convicted of an offence and the court orders the person to participate in:
a residential drug rehabilitation scheme; or
a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Minister to exercise power personally
The powers under subsections (1) and (3) may only be exercised by the Minister personally.
Minister to table decision
If the Minister makes a decision under subsection (1) or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to be laid before each House of the Parliament a statement that:
sets out the decision; and
sets out the reasons for the decision.
A statement under subsection (7) is not to include:
the name of the non-citizen; or
any information that may identify the non-citizen; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
Minister to notify person of decision
If the Minister makes a decision under subsection (1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa, the Minister must, in writing, notify the person of the decision. However, failure to do so does not affect the validity of the decision.
If the notification under subsection (10) relates to a decision to cancel a person’s temporary safe haven visa, the notification must be given in the prescribed way.
Natural justice and code of procedure not to apply to decision
The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (1) or (3).
Automatic refusal to grant visa to an immediate family member
If the Minister refuses to grant a person a temporary safe haven visa under subsection (1) or (3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each immediate family member of the person. The immediate family member need not be notified of the refusal.
Automatic cancellation of immediate family member’s visa
If a person’s temporary safe haven visa is cancelled under subsection (1) or (3), then a temporary safe haven visa held by each immediate family member of the person is also cancelled. The immediate family member need not be notified of the cancellation.
Definitions
In this section:
court includes a court martial or similar military tribunal.
immediate family member of a person means another person who is a member of the immediate family of the person (within the meaning of the regulations).
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Decision of Minister or delegate—natural justice applies
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
The Minister may cancel a visa that has been granted to a person if:
the Minister reasonably suspects that the person does not pass the character test; and
the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
The Minister may:
refuse to grant a visa to a person; or
cancel a visa that has been granted to a person;
if:
the Minister reasonably suspects that the person does not pass the character test; and
the Minister is satisfied that the refusal or cancellation is in the national interest.
The Minister must cancel a visa that has been granted to a person if:
the Minister is satisfied that the person does not pass the character test because of the operation of:
paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
paragraph (6)(e) (sexually based offences involving a child); and
the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection (3A) does not limit subsections (2) and (3).
The power under subsection (3) may only be exercised by the Minister personally.
If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.
Subsection (4A) does not apply if:
the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or
the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.
The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
the person has a substantial criminal record (as defined by subsection (7)); or
the person has been convicted of an offence that was committed:
while the person was in immigration detention; or
during an escape by the person from immigration detention; or
after the person escaped from immigration detention but before the person was taken into immigration detention again; or
the person has been convicted of an offence against section 197A; or
the Minister reasonably suspects:
that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
that the group, organisation or person has been or is involved in criminal conduct; or
subsection (6A) applies to the person (spreading hatred and extremism); or
the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
an offence under one or more of sections 233A to 234A (people smuggling);
an offence of trafficking in persons;
the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
having regard to either or both of the following:
the person’s past and present criminal conduct;
the person’s past and present general conduct;
the person is not of good character; or
in the event the person were allowed to enter or to remain in Australia, there is a risk that the person might:
engage in criminal conduct in Australia; or
harass, molest, intimidate or stalk another person in Australia; or
vilify a segment of the Australian community; or
incite discord in the Australian community or in a segment of that community; or
represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
a court in Australia or a foreign country has:
convicted the person of one or more sexually based offences involving a child; or
found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
the crime of genocide;
a crime against humanity;
a war crime;
a crime involving torture or slavery;
a crime that is otherwise of serious international concern; or
(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (Australian Security Intelligence Organisation Act 1979); orwithin the meaning of section 4 of the
an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
Spreading hatred and extremism
This subsection applies to a person if the Minister reasonably suspects that:
both of the following apply:
the person is, or has been, a member of an organisation;
at any time the person was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or
all of the following apply:
the person has, or has had, an association with an organisation;
at any time during the person’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;
the person intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or
the person has been or is involved in conduct constituting a hate crime (whether or not the person, or another person, has been convicted of an offence constituted by the conduct); or
both of the following apply:
the person has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or
both of the following apply:
the person has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.
Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).
Note 2: See subsections (11A) and (11B) for other rules relating to this subsection. See also subsection 5(1) for definitions of terms used in this subsection.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
the person has been sentenced to death; or
the person has been sentenced to imprisonment for life; or
the person has been sentenced to a term of imprisonment of 12 months or more; or
the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
the person has:
been found by a court to not be fit to plead, in relation to an offence; and
the court has nonetheless found that on the evidence available the person committed the offence; and
as a result, the person has been detained in a facility or institution.
Concurrent sentences
For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Periodic detention
For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
a residential drug rehabilitation scheme; or
a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
the conviction concerned has been quashed or otherwise nullified; or
both:
the person has been pardoned in relation to the conviction concerned; and
the effect of that pardon is that the person is taken never to have been convicted of the offence.
Conduct amounting to harassment or molestation
For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
it does not involve violence, or threatened violence, to the person; or
it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Limbs of character test do not limit each other
(11A) None of the limbs of the character test are intended to limit or otherwise affect each other.
Note: In addition, the power to cancel a visa because a person fails the character test is not limited by other powers in this Act to cancel the visa (see section 118).
Minister not required to determine whether membership or association is ongoing
The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (6A)(a) or (b).
Definitions
In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
This section applies if:
a delegate of the Minister; or
the ART;
makes a decision (the original decision):
not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or the ART that the person passes the character test and whether or not the delegate or the ART reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
The Minister may set aside the original decision and:
refuse to grant a visa to the person; or
cancel a visa that has been granted to the person;
if:
the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
the person does not satisfy the Minister that the person passes the character test; and
the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
The Minister may set aside the original decision and:
refuse to grant a visa to the person; or
cancel a visa that has been granted to the person;
if:
the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
the Minister is satisfied that the refusal or cancellation is in the national interest.
The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
The power under subsection (2) or (3) may only be exercised by the Minister personally.
The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
Decision not reviewable by application under Part 5
A decision under subsection (2) or (3) is not reviewable by application under Part 5.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
(1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
The Minister may set aside the original decision and:
refuse to grant a visa to the person; or
cancel a visa that has been granted to the person;
if:
the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
the person does not satisfy the Minister that the person passes the character test; and
the Minister is satisfied that the refusal or cancellation is in the national interest.
The power under subsection (2) may only be exercised by the Minister personally.
A decision under subsection (2) is not reviewable by application under Part 5.
To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the ART.
Note: For notification of decisions under this section, see section 501G.
This section applies if:
a delegate of the Minister; or
the ART;
makes a decision under original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.section 501CA (the
Action by Minister—natural justice does not apply
The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
the Minister is satisfied that the person does not pass the character test because of the operation of:
paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
paragraph 501(6)(e); and
the Minister is satisfied that the cancellation is in the national interest.
The rules of natural justice do not apply to a decision under subsection (2).
Minister’s exercise of power
The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable by application under Part 5
A decision under subsection (2) is not reviewable by application under Part 5.
Note: For notification of decisions under subsection (2), see section 501G.
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
refuse to grant a visa to a person; or
cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
would be the reason, or a part of the reason, for making the original decision; and
is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
As soon as practicable after making the original decision, the Minister must:
give the person:
a written notice that sets out the original decision; and
particulars of the relevant information; and
except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
If the notice under subsection (3) relates to an original decision to cancel a visa, the notice must be given in the prescribed way.
The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the person satisfies the Minister that the person passes the character test (as defined by section 501).
The power under subsection (4) may only be exercised by the Minister personally.
If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
Any detention of the person that occurred during any part of the period:
beginning when the original decision was made; and
ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.
If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.
The regulations may provide that, for the purposes of this section:
a person; or
a person included in a specified class of persons;
is not entitled to make representations about revocation of an original decision unless the person is a detainee.
A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
would be the reason, or a part of the reason, for making the original decision; and
is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
As soon as practicable after making the original decision, the Minister must:
give the person:
a written notice that sets out the original decision; and
particulars of the relevant information; and
invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
The notice under subsection (3) must be given in the prescribed way.
The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the Minister is satisfied:
that the person passes the character test (as defined by section 501); or
that there is another reason why the original decision should be revoked.
If the Minister revokes the original decision, the original decision is taken not to have been made.
Any detention of the person that occurred during any part of the period:
beginning when the original decision was made; and
ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.
Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
The regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether:
a person; or
a person included in a specified class of persons;
satisfies the Minister that the person passes the character test (as defined by section 501), any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
(1) A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
the decision was neither set aside nor revoked before the application time.
In relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter whether:
the application for the visa was made on the person’s behalf; or
the person knew about, or understood the nature of, the application for the visa due to:
any mental impairment; or
the fact that the person was, at the time the application was made, a minor.
In paragraph (1)(a) and subsection (1A), a reference to a refusal to grant a visa, or to the cancellation of a visa, includes a reference to such a refusal or cancellation in relation to a visa for which an application is taken to have been made by the operation of this Act or a regulation.
Subsection (1) does not prevent a person, at the application time, from making an application for:
a protection visa; or
a visa specified in the regulations for the purposes of this subsection.
Note: The person may however be prevented from applying for a protection visa because of section 48A.
Subsection (1) does not prevent a person, at the application time, from making an application for a visa if, before the application time, the Minister had, acting personally, granted a permanent visa to the person.
Subsection (1) does not prevent a person, at the application time, from making an application for a visa if:
before the application time, the person was granted a visa of a kind referred to in subsection (2) or (3); and
the person would, but for the operation of subsection (2) or (3), have been prevented from applying for that visa.
This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
If:
the person has made another visa application that has neither been granted nor refused; and
the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to refuse that other application.
If:
the person holds another visa; and
that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.
A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable by application under Part 5.
Note: For notification of decisions under this section, see section 501G.
If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
refuse to grant a visa to a person; or
cancel a visa that has been granted to a person; or
not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
sets out the decision; and
specifies the provision under which the decision was made and sets out the effect of that provision; and
sets out the reasons (other than non-disclosable information) for the decision; and
if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the ART:
states that the decision can be reviewed by the ART; and
states the time in which the application for review may be made; and
states who can apply to have the decision reviewed; and
states where the application for review can be made; and
in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
sets out such additional information (if any) as is prescribed.
If the decision referred to in subsection (1):
was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and
is reviewable by the ART; and
relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
is in the delegate’s possession or under the delegate’s control; and
was relevant to the making of the decision; and
does not contain non-disclosable information.
A notice under subsection (1) must be given in the prescribed way.
A failure to comply with this section in relation to a decision does not affect the validity of the decision.
Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (1) of this section.
Additional powers
A power under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
Cross-references to decisions under section 501
A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501BA, 501C or 501F.
If, under the Migration Reform (Transitional Provisions) Regulations, a person:
held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or
held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or
is taken to hold a transitional (permanent) visa;
the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa.
If the Minister thinks that it is in the public interest to do so, the Minister may set aside an ART protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the ART had the power to make that other decision.
(2) For the purposes of this section, an ART protection visa decision is a decision of the ART in relation to an application for, or the cancellation of, a protection visa.
In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
The power under subsection (1) may only be exercised by the Minister personally.
If the Minister substitutes a decision under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that:
sets out the decision of the ART; and
sets out the decision substituted by the Minister; and
sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
A statement made under subsection (5) is not to include:
the name of the applicant; or
any information that may identify the applicant; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
A statement under subsection (5) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
This section applies to a review by the ART if the review relates to a person in the person’s capacity as:
a person who applied for a protection visa; or
a person who applied for a protection-related bridging visa; or
a person whose protection visa has been cancelled; or
a person whose protection-related bridging visa has been cancelled.
The ART must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:
the person; or
any relative or other dependant of the person.
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
In this section:
application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.
The Minister may, by written notice, require the head of an agency of a State or Territory to disclose to the Minister personal information that:
is of a kind specified in the notice; and
relates to a person, or to a person included in a class of persons, specified in the notice.
The Minister must not give a notice under subsection (1) to the head of an agency of a State or Territory unless the Minister reasonably believes:
that the head of the agency has, or can reasonably acquire, the information; and
the information is relevant for the purposes of considering whether:
a person satisfies the Minister that the person passes the character test (as defined in section 501); or
the Minister reasonably suspects, or is satisfied, that a person does not pass the character test.
The head of an agency of a State or Territory who is given a notice under subsection (1) must, as soon as practicable after the notice is given, comply with the notice to the extent that he or she has, or can reasonably acquire, the information specified in the notice.
Despite subsection (3), the registrar (however described) of a court of a State or Territory is not required to comply with a notice under subsection (1) to the extent that the information specified in the notice, in relation to a person specified in the notice, is information that relates to proceedings that have not been finally determined by the court.
The head of an agency of a State or Territory is not excused from complying with a notice under subsection (1) on the ground that disclosing the information specified in the notice would contravene a law of the Commonwealth, a State or a Territory that:
primarily relates to the protection of the privacy of individuals; and
prohibits or regulates the use or disclosure of personal information.
Immunity from suit
A person is not liable to:
any proceedings for contravening a provision of a law referred to in subsection (5); or
civil proceedings for loss, damage or injury of any kind suffered by another person;
merely because the person gives information to the Minister for the purposes of ensuring that the head of an agency of a State or Territory complies with a notice under subsection (1).
In this section:
agency of a State or Territory includes the following:
the Crown in right of a State or Territory;
a Minister of a State or Territory;
a State or Territory government department;
an instrumentality of a State or Territory, including a body corporate established for a public purpose by or under a law of a State or Territory;
a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together:
the Crown in right of a State or Territory;
a person or body covered by paragraph (b) or (d);
a State or Territory court;
a State or Territory tribunal;
a State or Territory parole board.
head of an agency means:
if the agency is a State or Territory court—the registrar (however described) of the court; or
otherwise—the principal officer (however described) of the agency.
Collection, use and disclosure
The Minister or an officer of the Department may collect, use, or disclose to a person or body, criminal history information for the purpose of informing, directly or indirectly, the performance of a function or the exercise of a power under this Act or the regulations.
Secondary use and disclosure
If a person or body receives criminal history information as a result of a disclosure under subsection (1), the person or body may collect, use, or disclose to a person or body, the information for the purpose of providing advice or recommendations, directly or indirectly, to the Minister or an officer of the Department on matters relating to the performance of a function or the exercise of a power under this Act or the regulations.
Existing prohibitions do not apply
This section has effect despite:
(a) any other provision of this Act or the regulations, Crimes Act 1914, or any other law of the Commonwealth; orDivision 3 of Part VIIC of the
any law of a State or Territory.
No limitation on existing powers
This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.
Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to the government of a foreign country, for certain purposes, criminal history information about certain non-citizens (see section 198AAA).
Natural justice does not apply
The rules of natural justice do not apply to an exercise of power under this section.
If:
the Minister, acting personally, intends to make a decision:
under section 200 because of circumstances specified in section 201; or
to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
in relation to a person; and
the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
A decision under subsection (1) must be taken by the Minister personally.
If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.
A person in relation to whom a decision has been made:
under section 200 because of circumstances specified in section 201; or
under section 501, 501A, 501B or 501BA; or
to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.
The period referred to in subsection (1) commences, in the case of a person who has been deported or removed from Australia, when the person is so deported or removed.
Different periods may be prescribed under subsection (1) in relation to different situations.
This section does not apply to a holder of a criminal justice visa or to a holder of a permanent visa that was granted by the Minister acting personally.
If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA:
the officer must not divulge or communicate the information to another person, except where:
the other person is the Minister or an authorised migration officer; and
the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; and
an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:
the other person is the Minister or an authorised migration officer; and
the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA.
Note: Authorised migration officer and gazetted agency are defined by subsection (9).
If:
information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; or
information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.
The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.
Note: Commonwealth officer is defined by subsection (9).
The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3).
If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration.
If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):
the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2); and
the officer must not give the information in evidence before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
The information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if a fresh disclosure of the information is made in accordance with:
a declaration under subsection (3); or
subsection 503B(6).
If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).
If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3):
the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2); and
the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
The information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if a fresh disclosure of the information is made in accordance with:
a declaration under subsection (3); or
subsection 503B(6).
This section has effect despite anything in:
any other provision of this Act (other than sections 503B and 503C); and
any law (whether written or unwritten) of a State or a Territory.
To avoid doubt, if information is divulged or communicated:
in accordance with paragraph (1)(a) or (b); or
in accordance with a declaration under subsection (3);
the divulging or communication, as the case may be, is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.
(8) If any Act (whether passed before or after the commencement of this section), except the Inspector-General of Intelligence and Security Act 1986, provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.
Note: This section is specified in Schedule 3 to the Freedom of Information Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act.
In this section:
Australian law enforcement or intelligence body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia.
authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as in section 121.1 of the Criminal Code.
foreign law enforcement body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country.
gazetted agency means:
Note: A Minister is not a Commonwealth officer.
(a) in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or
(b) in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or
a war crimes tribunal established by or under international arrangements or international law.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
Court may make non-disclosure orders
If:
either:
information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; or
information is communicated to the Minister or an authorised migration officer in accordance with paragraph 503A(1)(a) or (b); and
(b) the information is relevant to proceedings (the substantive proceedings) before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that relate to section 501, 501A, 501B, 501BA, 501C or 501CA; and
no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings;
the Federal Court or the Federal Circuit and Family Court of Australia (the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), the information is not divulged or communicated to:Division 2) may, on application by
the applicant in relation to the substantive proceedings; or
the legal representative of the applicant in relation to the substantive proceedings; or
any other member of the public.
The orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) include:
an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the substantive proceedings; or
an order that no report of the whole of, or a specified part of, or relating to, the substantive proceedings is to be published; or
an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
Subsection (2) does not limit subsection (1).
The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Criteria for making non-disclosure order
In exercising its powers under subsection (1), the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) must have regard to all of the following matters:
the fact that the information was communicated, or originally communicated, to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information;
Australia’s relations with other countries;
the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;
in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;
the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;
Australia’s national security;
the fact that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;
the effectiveness of the investigations of official inquiries and Royal Commissions;
the interests of the administration of justice;
such other matters (if any) as are specified in the regulations;
and must not have regard to any other matters.
Disclosure of information for the purposes of deciding whether or not to make a non-disclosure order
If an application is made under subsection (1) in relation to particular information, subsections 503A(1) and (2) do not prevent the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of enabling the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to make a decision on the application.
If information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (6):
the information is not to be treated as having been disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings; and
the information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings if a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3).
Variation or revocation of non-disclosure order
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (1) if both:
the Minister; and
the applicant in relation to the substantive proceedings;
consent to the variation or revocation.
Withdrawal of application for non-disclosure order
The Minister may withdraw an application under subsection (1) at any time.
Declarations under subsection 503A(3)
This section does not prevent the Minister from making a declaration at any time under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) is considering whether to make an order under subsection (1).
To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) has made an order under subsection (1) of this section in relation to the information concerned.
Offence
A person commits an offence if:
an order is in force under subsection (1); and
the person engages in conduct; and
the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
This section has effect despite anything in:
any other provision of this Act; or
any other law of the Commonwealth.
Applicant
For the purposes of this section, the table has effect:
Definitions
In this section:
authorised migration officer has the same meaning as in section 503A.
engage in conduct means:
do an act; or
omit to perform an act.
gazetted agency has the same meaning as in section 503A.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
Royal Commission means a Royal Commission (however described) under a law of the Commonwealth, a State or a Territory.
Notice of intention to apply for a permanent non-disclosure order
At least 7 days before making an application for an order under subsection 503B(1) in relation to particular information, the Minister must give the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) written notice of the Minister’s intention to make the application.
A notice under subsection (1) need not identify any of the attributes of the information.
Interim non-disclosure order
If:
a notice is given under subsection (1); and
the notice relates to the Minister’s intention to make an application for an order under subsection 503B(1) in relation to particular information;
the Federal Court or the Federal Circuit and Family Court of Australia (the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre-empt:Division 2) may, on application by
the consideration of the subsection 503B(1) application by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2); or
the Minister’s consideration of whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
The orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (3) include:
an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the subsection 503B(1) application; or
an order that no report of the whole of, or a specified part of, or relating to, the subsection 503B(1) application is to be published; or
an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
Subsection (4) does not limit subsection (3).
The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Variation or revocation of non-disclosure order
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (3) if both:
the Minister; and
the applicant in relation to the substantive proceedings concerned;
consent to the variation or revocation.
Offence
A person commits an offence if:
an order is in force under subsection (3); and
the person engages in conduct; and
the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
This section has effect despite anything in:
any other provision of this Act; or
any other law of the Commonwealth.
Definition
In this section:
engage in conduct means:
do an act; or
omit to perform an act.
If section 503A or 503B applies to information communicated by a gazetted agency to an authorised migration officer so that the information cannot be divulged or communicated except as provided for in sections 503A, 503B and 503C, then sections 503A, 503B and 503C apply to similarly protect the agency’s details from being divulged or communicated as if the details were the information communicated by the agency.
(2) A reference in subsection (1) to agency’s details is a reference to any information in relation to the gazetted agency including the agency’s name and the conditions on which the communication of information by the agency occurred.
In this section:
gazetted agency has the same meaning as in section 503A.
If:
section 503A is not a valid law of the Commonwealth (in whole or in part); and
the Minister made a decision under section 501, 501A, 501B, 501BA, 501C or 501CA before the commencement of this section;
the decision is not invalid, and is taken never to have been invalid, merely because:
the Minister:
relied on; or
had regard to; or
failed to disclose in accordance with any applicable common law or statutory obligation;
information that was covered, or purportedly covered, by subsection 503A(1) or (2); or
the Minister made the decision on the basis of an erroneous understanding of:
section 503A; or
the protection that section 503A would provide against an obligation to disclose information.
However, subsection (1) does not affect rights or liabilities arising between parties to proceedings in which:
judgment is reserved by a court as at the commencement of this section; or
judgment has been delivered by a court before the commencement of this section;
and the judgment sets aside, or declares invalid, a decision made by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA.
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
making provision for and in relation to:
the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or
the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;
the way, including the currency, in which fees are to be paid; or
the persons who may be paid fees on behalf of the Commonwealth;
making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;
making provision for or in relation to the furnishing or obtaining of information with respect to:
persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and
persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and
persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier;
making provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph (c);
making provision for and in relation to:
the giving of documents to;
the lodging of documents with; or
the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;
prescribing the practice and procedure in relation to proceedings before a Commissioner or a prescribed authority under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations and the payment of expenses of witnesses;
requiring assurances of support to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of assurances of support and the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the assurances of support are given;
enabling a person who is alleged to have contravened 10 penalty units;section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding
enabling a person who is alleged to have contravened section 229 or 230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding:
in the case of a natural person—30 penalty units; and
in the case of a body corporate—100 penalty units; and
enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and
enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and
prescribing penalties, of imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, in respect of offences against the regulations; and
(l) making provision for matters that, under the Education Services for Overseas Students Act 2000, are required or permitted to be prescribed in regulations made under this Act.
(2) Section 14 of the Legislation Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations.
The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations specifying circumstances in which a document is to be taken to have been given in a specified way.
The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.
(3A) The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).
Regulations in respect of a matter referred to in paragraph (1)(g) may apply in relation to maintenance guarantees given before the commencement of this Part in accordance with the regulations that were in force under any of the Acts repealed by this Act.
An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(g) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever.
(5A) The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied:
subsection (5) of this section;
regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for:
the enforcement of assurances of support; or
the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.
In this section:
international air carrier means an air transport enterprise that operates an air service between Australia and a place outside Australia.
To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
is to get a specified person or organisation, or a person or organisation in a specified class, to:
give an opinion on a specified matter; or
make an assessment of a specified matter; or
make a finding about a specified matter; or
make a decision about a specified matter; and
is:
to have regard to that opinion, assessment, finding or decision in; or
to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people.
The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.
The questions for a non-citizen required by subsection (2) may include, but are not limited to, questions about any or all of the following:
the non-citizen’s health;
any criminal convictions in Australia or a foreign country of the non-citizen;
the purpose of the new arrival’s going to Australia;
any unpaid debts to the Commonwealth of the non-citizen;
any removal or deportation from, or refusal of admission into, Australia or a foreign country of the non-citizen.
The regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.
The penalty must not exceed one-fifth of the maximum penalty that a court could impose on the person for a contravention of the civil penalty provision.
Request for tax file numbers
(1) The Secretary may request any of the persons mentioned in subsection (2) to provide the tax file number of a person (the relevant person) who is an applicant for, or holder or former holder of, a visa of a kind (however described) prescribed by the regulations.
For the purposes of subsection (1), the persons are any of the following:
the applicant, holder or former holder;
an approved sponsor of the applicant, holder or former holder;
a former approved sponsor of the applicant, holder or former holder;
a person who has nominated the applicant or holder in an approved nomination that has not ceased under the regulations;
a person who nominated the holder or former holder in an approved nomination that has ceased under the regulations.
A person to whom a request is made under subsection (1) who is lawfully in possession of the tax file number may disclose the tax file number in accordance with the request.
Verification of tax file numbers
The Secretary may provide the tax file number to the Commissioner of Taxation for the purpose of verifying the tax file number.
On receiving the tax file number, the Commissioner of Taxation may give the Secretary a written notice in accordance with the following table.
Commissioner of Taxation may provide tax file number
The Commissioner of Taxation may provide the tax file number of a person to the Secretary if the Secretary advises the Commissioner that the person is a relevant person.
Use, records or disclosures of tax file numbers
A tax file number provided under this section may be used, recorded or disclosed by an officer for any purposes prescribed by the regulations.
(1) The Sex Discrimination Act 1984, to the extent that it applies to the status or condition of being the spouse or de facto partner of another person, does not operate in relation to:
regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify:
the nature and incidents of the relationship between a person and another person; or
the period for which a relationship of a specified kind must have existed between a person and another person;
before the person is taken to be the de facto partner of the other person; or
the performance of any function, the exercise of any power or the fulfilment of any responsibility, in connection with the administration of any such regulation.
(2) To avoid doubt, subsection (1) does not prevent the Sex Discrimination Act 1984 from applying in relation to the marital or relationship status of persons making or administering regulations covered by subsection (1).
The Schedule—Acts relating to immigration and deportation repealed
Section 3
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under Legislation Act 2003.section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnote 5—Repeal tables
The amendment history of the repealed provisions of the Migration Act 1958 up to and including the Migration Legislation Amendment Act 1989 (No. 59, 1989) appears in the table below.
The amendment history of the repealed provisions of the Migration Act 1958 up to and including the Migration Legislation Amendment Act 1994 (No. 60, 1994) appears in the table below.
Endnote 6—Renumbering tables
The renumbering of provisions of the Migration Act 1958, made by the Migration Legislation Amendment Act 1989 (No. 59, 1989) appears in the table below.
The renumbering of provisions of the Migration Act 1958, made by the Migration Legislation Amendment Act 1994 (No. 60, 1994) appears in the table below.