Part 2—Arrival, presence and departure of persons
Division 14—Recovery of costs from certain persons
262 Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons
(1) A person who:
(a) is, or has been, detained under section 189; and
(b) 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
(ba) 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:
(c) 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
(d) the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and
(e) the cost of transporting the person, and a person holding the person, between places of immigration detention; and
(f) 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
(g) 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).
(2) 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.
(3) 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.
(4) To avoid doubt, the liability to pay the Commonwealth an amount under subsection (1) may be enforced:
(a) at the time the person is convicted of an offence mentioned in paragraph (1)(b); or
(b) 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).
263 Secretary or Australian Border Force Commissioner able to issue notice of debt
If:
(a) a person is liable to pay to the Commonwealth an amount under section 262; and
(b) 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:
(c) in a court of competent jurisdiction; or
(d) by garnishee notice under section 264.
264 Garnishee notice
(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:
(a) from whom any money is due or accruing, or may become due, to the debtor; or
(b) who holds, or may later hold, money for or on account of the debtor; or
(c) who holds, or may later hold, money on account of some other person for payment to the debtor; or
(d) 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:
(e) an amount specified in the notice, not exceeding the debt or the amount of the relevant money; or
(f) 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.
(2) 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:
(a) the relevant money becomes due or is held; or
(b) the end of the period of 14 days after the notice is given.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
265 Debt from failure to comply with garnishee notice
(1) If a person (garnishee debtor):
(a) is given a notice under section 264 in respect of a debt; and
(b) 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:
(c) legal proceedings in a court of competent jurisdiction; or
(d) a garnishee notice under section 264.
(2) The reference in subsection (1) to the amount of the debt outstanding is a reference to whichever is the lesser of:
(a) 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
(b) as much of the debt due at the time when the notice was given as remains due from time to time.
(3) If the Commonwealth recovers:
(a) the whole or a part of the debt due by the garnishee debtor; or
(b) the whole or a part of the debt due by the debtor (within the meaning of section 264);
then:
(c) both debts are reduced by the amount that the Commonwealth has so recovered; and
(d) the amount specified in the notice under section 264 is taken to be reduced by the amount so recovered.
266 Future debts
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.
267 Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts
(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:
(a) from whom any money is due or accruing, or may become due, to the future debtor; or
(b) who holds, or may later hold, money for or on account of the future debtor; or
(c) who holds, or may later hold, money on account of some other person for payment to the future debtor; or
(d) 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:
(e) an amount specified in the notice, not exceeding the future debt or the amount of the relevant money; or
(f) 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.
(2) 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.
(3) 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.
(4) 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.
268 Application of Division to the Crown
(1) 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.
(2) 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.
Division 14A—Monitoring compliance with student visa conditions
Subdivision A—Preliminary
268AA Definitions
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:
(a) in relation to premises comprising a vehicle or vessel—means the person apparently in charge of the vehicle or vessel; and
(b) in any case—includes a person who apparently represents the occupier.
premises means:
(a) an area of land or any other place, whether or not it is enclosed or built on; or
(b) a building or other structure; or
(c) a vehicle or vessel;
and includes a part of any such premises.
production notice means a notice given under section 268BA.
tribunal member means a member of the Administrative Appeals Tribunal.
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.
268AB Division binds the Crown
(1) This Division binds the Crown in each of its capacities.
(2) However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.
268AD Powers conferred on magistrates in their personal capacity
(1) 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.
(2) The magistrate need not accept the power conferred.
(3) 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
268BA Production notices
(1) 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.
(2) The Secretary or Australian Border Force Commissioner may give the individual a written notice requiring him or her to:
(a) give any information or documents relevant to the visa monitoring purpose to an authorised officer; or
(b) show any such documents to an authorised officer; or
(c) 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.
(3) 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.
(4) The individuals who may be given a production notice are:
(a) an officer or employee of an education provider; or
(b) a consultant to an education provider; or
(c) a partner in an education provider; or
(d) an individual trading as an education provider.
(5) 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.
268BB Contents of the production notice
(1) A production notice must:
(a) state that it is given under section 268BA; and
(b) set out the effects of sections 268BH, 268BI and 268BJ; and
(c) state how and by when the information or documents must be given or shown.
(2) In so far as the notice covers information or documents:
(a) that relate to any extent to the calendar year in which the notice is given; and
(b) 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.
(3) 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.
268BC Serving production notices
(1) The Secretary or Australian Border Force Commissioner must give a production notice to an individual:
(a) by delivering it to the individual personally; or
(b) by:
(i) 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
(ii) taking reasonably practicable action to draw the individual’s attention to the notice; or
(c) 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.
(2) 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.
268BD Attendance notices
(1) 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.
(2) 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.
(3) The individuals who may be given an attendance notice are:
(a) an officer or employee of an education provider; or
(b) a consultant to an education provider; or
(c) a partner in an education provider; or
(d) an individual trading as an education provider.
(4) 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.
268BE Contents of attendance notice
(1) An attendance notice must:
(a) state that it is given under section 268BD; and
(b) set out the effects of sections 268BH, 268BI and 268BJ; and
(c) 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.
(2) An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.
268BF Scales of expenses
The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Subdivision.
268BG Reasonable compensation for giving copies
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).
268BH Offence: failing to comply with a notice
(1) A person who refuses or fails to comply with a production or attendance notice commits an offence.
Penalty: Imprisonment for 6 months.
(2) 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.
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
268BI Offence: giving false or misleading information
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.
268BJ Offence: giving false or misleading document
(1) 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.
(2) However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:
(a) stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and
(b) 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.
268BK Information and documents that incriminate a person
(1) 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.
(2) However, if the person is an individual:
(a) the information, document or answer to the question; or
(b) 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.
268BL Copies of documents
An authorised officer, or another officer with an authorised officer’s permission, may:
(a) inspect a document given or shown to the authorised officer under this Subdivision; and
(b) make and retain copies of, or take and retain extracts from, such a document; and
(c) 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).
268BM Officer may retain documents
(1) An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:
(a) for the purposes of this Act; or
(b) for the purposes of an investigation as to whether an offence has been committed; or
(c) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) 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.
268BN Owner of document must be given copy
(1) If an officer retains a document under section 268BM, then the Secretary or Australian Border Force Commissioner must as soon as practicable:
(a) 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.
(2) The certified copy must be received in all courts and tribunals as evidence as if it had been the original.
(3) 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.
268BO Retaining documents
(1) This section applies 60 days after a document is given to an authorised officer under this Subdivision.
(2) 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.
(3) However, the authorised officer does not have to take those steps if:
(a) the authorised officer may retain the document because of an order under section 268BQ; or
(b) 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.
268BP Officer may apply to magistrate or tribunal member for a further period
(1) 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 tribunal member for an order that the officer may retain the document for a further period.
(2) The application must be made before the end of:
(a) 60 days after the document was given to the authorised officer; or
(b) a period previously specified in an order of a magistrate or tribunal member under section 268BQ.
(3) Before making the application, the officer must:
(a) take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and
(b) if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.
268BQ Magistrate or tribunal member may order retention for further period
(1) The magistrate or tribunal member may order that the officer who made the application under section 268BP may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the officer to retain it:
(a) for the purposes of this Act; or
(b) for the purposes of an investigation as to whether an offence has been committed; or
(c) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) The order must specify the period for which the officer may retain the document.
Subdivision C—Searching education providers’ premises
268CA Authorised officer may enter premises for a visa monitoring purpose
(1) An authorised officer may for a visa monitoring purpose:
(a) enter any premises:
(i) occupied by an education provider for the purposes of providing courses of education or of training; or
(ii) 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
(b) exercise the monitoring powers set out in section 268CI.
(2) An authorised officer is not authorised to enter premises under subsection (1) unless:
(a) 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.
(b) the entry is made under a monitoring warrant.
Note: Monitoring warrants are issued under section 268CE or 268CZD.
(3) 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.
268CB Being on premises with consent
(1) 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.
(2) However, the authorised officer must leave the premises if the occupier asks the officer to do so.
268CC Consent
(1) 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.
(2) An entry of an authorised officer with the consent of a person is not lawful unless the person voluntarily consents to the entry.
268CD Authorised officer may apply for monitoring warrant
(1) An authorised officer may apply to a magistrate or tribunal 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.
(2) The officer must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.
268CE Magistrate or tribunal member may issue monitoring warrant
The magistrate or tribunal 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.
268CF Magistrate or tribunal member may require more information
(1) The magistrate or tribunal member may require an authorised officer or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.
(2) The information may be given either orally or by affidavit.
(3) The magistrate or tribunal member must not issue the warrant until the officer or other person has given the required information.
268CG Contents of monitoring warrant
(1) A monitoring warrant must:
(a) authorise one or more authorised officers:
(i) to enter the premises; and
(ii) to exercise the powers under section 268CI in relation to the premises; and
(b) state whether the entry is authorised at any time of the day or night or during specified hours of the day or night; and
(c) 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
(d) state the purpose for which the warrant is issued; and
(e) state that the warrant is issued under section 268CE.
(2) The authorised officers do not have to be named in the warrant.
268CH Use of reasonable force and assistance
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.
268CI Monitoring powers of authorised officers
(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:
(a) 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;
(b) to examine any such thing;
(c) 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;
(d) to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;
(e) to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;
(f) to take extracts from or make copies of any such document;
(g) 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;
(h) 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:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) 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:
(a) to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;
(b) to operate such facilities to transfer the information to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) 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);
(c) 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).
(4) 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.
268CJ Authorised officer on premises with consent may ask questions
An authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:
(a) ask the occupier to:
(i) answer any questions that are relevant to a visa monitoring purpose; and
(ii) give or show the officer any document requested by the officer that is relevant to the matter; or
(b) 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.
268CK Authorised officer on premises under warrant may ask questions
An authorised officer who is authorised to enter premises by a monitoring warrant may:
(a) require the occupier of the premises to:
(i) answer any questions that are relevant to a visa monitoring purpose; and
(ii) give or show the officer any document requested by the officer that is relevant to a visa monitoring purpose; or
(b) 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.
268CL Offence: failure to answer question
(1) 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.
(2) 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.
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
268CM Offence: giving false or misleading information
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.
268CN Offence: giving or showing documents that are false or misleading in material particulars
(1) 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.
(2) However, the person does not commit an offence if the document is accompanied by a written statement signed by the person:
(a) stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and
(b) 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.
268CO Use of electronic equipment in exercising monitoring powers
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.
268CP Use of electronic equipment by experts
(1) This section applies if the authorised officer or a person assisting reasonably believes that:
(a) there is on the premises information belonging to the education provider concerned:
(i) that is relevant to a visa monitoring purpose; and
(ii) that might be accessible by operating electronic equipment that is on the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under subsection (2), the information might be destroyed, altered or otherwise interfered with.
(2) The authorised officer or person assisting may do whatever is necessary to secure the equipment.
(3) Before doing so, the authorised officer or person assisting must give notice to the occupier of the premises of:
(a) his or her intention to secure equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
(4) The equipment may only be secured until the earlier of:
(a) 24 hours later; or
(b) the equipment being operated by the expert.
268CQ Extension of period
(1) 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 tribunal member for an extension of the period.
(2) 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.
(3) 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.
268CR Powers without warrant in emergency situations
(1) 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
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a monitoring warrant because the circumstances are so serious and urgent.
(2) The authorised officer may:
(a) search the premises, and any receptacle on the premises, for the thing; and
(b) seize the thing if he or she finds it there; and
(c) exercise the powers mentioned in subsections 268CI(2) and (3) in relation to the thing.
268CS Retaining seized things
(1) This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:
(a) 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
(b) the period of 60 days after the thing’s seizure ends.
(2) 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.
(3) However, the authorised officer does not have to take those steps if:
(a) in a paragraph (1)(b) case:
(i) 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
(ii) the authorised officer may retain the thing because of an order under section 268CU; or
(b) 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
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
268CT Authorised officer may apply for a thing to be retained for a further period
(1) 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:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate or tribunal member under section 268CU.
(2) The authorised officer may apply to a magistrate or tribunal member for an order that the officer may retain the thing for a further period.
(3) Before making the application, the authorised officer must:
(a) take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.
268CU Magistrate or tribunal member may order that thing be retained
(1) The magistrate or tribunal member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the officer to do so:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) The order must specify the period for which the officer may retain the thing.
268CV Occupier to provide authorised officer with all facilities and assistance
(1) 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.
(2) A person commits an offence if the person contravenes subsection (1).
Penalty for contravention of this subsection: 10 penalty units.
268CW Announcement before entry
An authorised officer executing a monitoring warrant must, before entering premises under the warrant:
(a) announce that he or she is authorised to enter the premises; and
(b) give a person on the premises (if there is one) an opportunity to allow entry to the premises.
268CX Copy of monitoring warrant to be given to occupier before entry
(1) 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.
(2) The authorised officer must identify himself or herself to that person.
268CY Compensation for damage to electronic equipment or data
(1) This section applies if:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 268CO; or
(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to operate the equipment; or
(d) insufficient care was exercised by the person operating the equipment.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
268CZ Occupier entitled to be present during execution of monitoring warrant
(1) 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.
(2) The right to observe the execution of the warrant ceases if the occupier impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.
268CZA Identity cards
(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.
(2) A person commits an offence if:
(a) the person holds or held an identity card for the purposes of this Subdivision; and
(b) the person ceases to be an authorised officer for all purposes under this Act; and
(c) 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.
(3) This offence is one of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) 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.
(5) An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.
268CZB Authorised officer must produce identity card on request
An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:
(a) the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and
(b) the authorised officer fails to comply with the request.
268CZC Officer may apply for warrants by telephone etc.
(1) An authorised officer may apply to a magistrate or tribunal 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.
(2) The magistrate or tribunal member may require communication by voice to the extent that it is practicable in the circumstances.
(3) Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.
(4) However, the officer may make the application before the information has been sworn or affirmed, if necessary.
268CZD Magistrate or tribunal member may grant warrant by telephone etc.
(1) Before issuing the warrant the magistrate or tribunal member must:
(a) consider the information prepared under subsection 268CZC(3); and
(b) receive any further information that the magistrate or tribunal member may require about the grounds on which the warrant is being sought.
(2) The magistrate or tribunal member may issue the warrant if the magistrate or tribunal member is satisfied:
(a) that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and
(b) that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.
268CZE Procedure for issuing warrant by telephone etc.
(1) If the magistrate or tribunal member issues a monitoring warrant under section 268CZD, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or tribunal member would have issued if the application had been made under section 268CD.
(2) The magistrate or tribunal member must also:
(a) inform the authorised officer of:
(i) the terms of the warrant; and
(ii) the day and time when it was signed; and
(iii) the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and
(b) record on the warrant the reasons for issuing it.
(3) The authorised officer must:
(a) complete a form of warrant in the terms given to the authorised officer by the magistrate or tribunal member; and
(b) write on it the magistrate’s or tribunal member’s name and the day and time when the warrant was signed.
268CZF Procedure after telephone warrant ceases or is executed
(1) An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or tribunal member who signed the monitoring warrant:
(a) the form of warrant completed by the authorised officer; and
(b) the information duly sworn or affirmed in connection with the warrant.
(2) The form of warrant and information must be sent by the end of the day after the earlier of:
(a) the day on which the warrant ceases to have effect; or
(b) the day on which the warrant is executed.
(3) The magistrate or tribunal member must:
(a) attach the monitoring warrant signed by the magistrate or tribunal member under section 268CZE to the form of warrant and information; and
(b) deal with the documents in the same way that the magistrate or tribunal member would have dealt with them if the application for the warrant had been made under section 268CD.
268CZG Form of warrant authorises exercise of power
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.
268CZH Court to assume that exercise of power not authorised by telephone etc. 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 tribunal member under section 268CZE is not produced in evidence.
Division 15—General
269 Securities
(1) 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:
(a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or
(b) in accordance with a form of security approved by the Minister.
(1A) 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:
(a) 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
(b) the officer has indicated those conditions to the applicant.
(2) 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.
(3) 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.
(4) 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:
(a) an extension of time or other concession;
(b) any consent to, or acquiescence in, a previous non‑compliance with a condition; or
(c) any failure to bring suit against the subscribers upon the occurrence of a previous non‑compliance with the condition.
270 Reports of absences of crews of vessels
(1) 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:
(a) 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
(b) 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.
(2) 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:
(a) at any time during the vessel’s stay at that port, left the vessel without leave; or
(b) 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.
271 Proof of certain matters
(1) In migration proceedings:
(a) 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
(b) a certificate signed by an officer stating that:
(i) 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
(ii) 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
(c) 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
(d) 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
(e) 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
(f) 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
(g) 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
(h) 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
(i) 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:
(i) are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and
(ii) 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
(j) evidence that a person who travelled to and entered Australia on board a vessel, when entering, either:
(i) failed to produce to an officer, upon demand by that officer, a passport; or
(ii) 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
(k) 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:
(i) that is in effect; and
(ii) 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
(l) a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:
(i) at a specified time or during a specified period; and
(ii) 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
(m) a certificate signed by an officer stating:
(i) 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
(ii) 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).
(2) 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.
(3) 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.
(4) In this section:
migration proceedings means:
(a) proceedings in a court (including criminal proceedings):
(i) under this Act, or in relation to an offence against this Act or a contravention of a civil penalty provision; or
(ii) in relation to a deportation order; or
(b) proceedings in the Tribunal for the review of a decision under this Act, including a decision to make a deportation order; or
(c) proceedings in the Immigration Assessment Authority for the review of a fast‑track reviewable decision.
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:
(a) outcomes from its operation comply with this Act and the regulations; and
(b) those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.
272 Migrant centres
(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.
(2) 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.
(3) 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.
(4) 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.
273 Detention centres
(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2) The regulations may make provision in relation to the operation and regulation of detention centres.
(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
detention centre means a centre for the detention of persons whose detention is authorised under this Act.
274 Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons
(1) This section applies to a person who:
(a) is a deportee who has not yet been deported; or
(b) is a removee who has not yet been removed; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared.
(2) 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.
(3) A document for the purposes of subsection (2):
(a) shall be in the prescribed form;
(b) shall state, to the best of the Secretary’s, insert “or Australian Border Force Commissioner’s knowledge, the name and nationality of the person concerned; and
(c) may include such other information as the Secretary or Australian Border Force Commissioner thinks appropriate.
Part 3—Migration agents and immigration assistance
Division 1—Preliminary
275 Interpretation
In this Part, unless the contrary intention appears:
cancellation review applicant means an applicant for:
(a) review of a decision to cancel a visa held by the applicant; or
(b) revocation under section 137L of the cancellation of a visa held by the applicant; or
(c) review of a decision under that section not to revoke such a cancellation.
cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.
high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC.
Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390).
Migration Agents Registration Authority means:
(a) if an appointment of the Institute is in force under section 315—the Institute; or
(b) otherwise—the Minister.
migration procedure means the law, and administrative practice, relating to immigration.
official means:
(a) a person appointed or engaged under the Public Service Act 1999; or
(c) a member of the public service of a State or Territory; or
(d) a member of the staff of a Parliamentarian.
parliamentarian means:
(a) a Senator; or
(b) a Member of the House of Representatives; or
(c) a member of the Parliament of a State; or
(d) 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 section 286.
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.
review authority means:
(a) the the Tribunal in reviewing a Part 5‑reviewable decision; or
(b) the the Tribunal in reviewing a Part 7‑reviewable decision; or
(c) the Immigration Assessment Authority.
276 Immigration assistance
(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:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority 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:
(a) 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
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c) representing the other person in proceedings before a court or review authority 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:
(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(aa) 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
(b) advising the other person about making a request referred to in paragraph (a) or (aa).
(3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations.
277 Immigration legal assistance
(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:
(a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or
(b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or
(c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:
(i) the preparation or lodging of the visa application or cancellation review application;
(ii) proceedings before a review authority in relation to the visa application or cancellation review application;
(iii) the review by a review authority of a decision relating to the visa application or cancellation review application.
(2) For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:
(a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or
(b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).
(3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:
(a) the preparation or lodging of an approved form putting forward the name of a visa applicant; or
(b) the preparation or lodging of an approved form undertaking sponsorship; or
(c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or
(d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).
(4) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person).
(5) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of 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).
278 Relation by employment
(1) For the purposes of this Part, an individual is related by employment to another individual if:
(a) one individual is an employee of the other; or
(b) they are executive officers of the same corporation; or
(c) they are members of the same partnership; or
(d) one individual is an employee of a corporation and the other is:
(i) an employee of the corporation; or
(ii) an executive officer of the corporation; or
(e) one individual is an employee of a partnership and the other is:
(i) an employee of the partnership; or
(ii) 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
(3) In this section:
employee includes a person engaged as a consultant or as an independent contractor.
279 Part VIIC of the Crimes Act 1914 to apply to this Part
(1) Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.
(2) Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the Migration Agents Registration Authority as if it were a Commonwealth authority for the purposes of that Division.
Division 2—Restrictions on giving of immigration assistance and making of immigration representations
280 Restrictions on giving of immigration assistance
(1) 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).
(1A) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) 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).
(3) This section does not prohibit a lawyer from giving immigration legal 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).
(4) 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).
(5) 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).
(5A) 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).
(5B) 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).
(5C) 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).
(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission; or
(b) a member of a consular post; or
(c) 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).
(7) 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.
281 Restriction on charging fees for immigration assistance
(1) 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.
(2) 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.
(3) This section does not prohibit:
(a) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or
(b) a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) 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).
282 Restriction on charging fees for immigration representations
(1) 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.
(2) 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.
(3) 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:
(a) on behalf of a visa applicant about the application for the visa; or
(b) on behalf of a cancellation review applicant about the cancellation review application; or
(c) on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or
(d) on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or
(e) 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, 417 or 501J in respect of a decision (whether or not the decision relates to that person), about the request; or
(f) 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.
(5) A person does not make immigration representations in the circumstances prescribed by the regulations.
283 False representation that a person is a registered migration agent
(1) A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent.
(2) 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.
284 Restriction on self‑advertising of the giving of immigration assistance
(1) 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.
(2) 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).
(3) This section does not prohibit a lawyer from advertising that he or she gives immigration legal 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).
(4) 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).
285 Restriction on other advertising of immigration assistance
(1) 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.
(2) 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).
(3) This section does not prohibit a person from advertising that another person who is a lawyer gives immigration legal 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).
(4) 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).
Division 3—Registration of migration agents
286 Individuals may be registered as migration agents
Individuals may be registered as migration agents in accordance with this Part.
287 Register of Migration Agents
(1) 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.
(2) The Register is to show in respect of each registered migration agent:
(a) the agent’s full name; and
(b) any business names of the agent or the agent’s employer; and
(c) a business address for the agent; and
(d) a telephone number for contacting the agent; and
(e) the date on which the agent was registered most recently; and
(g) particulars of any suspension of the agent’s registration; and
(h) particulars of any caution given to the agent; and
(i) particulars of any other prescribed matter.
(3) The Migration Agents Registration Authority must keep records to show:
(a) what was in the Register from time to time; and
(b) particulars of any cancellation or suspension of a registered migration agent’s registration or of any caution given to such an agent.
(3A) 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.
(4) 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
(5) The Authority must remove from the Register the following details:
(a) particulars of any suspension of a registered migration agent’s registration (if the suspension is no longer in effect);
(b) particulars of any caution given to such an agent (if the caution is no longer in effect).
Time for removal
(6) The Authority must remove the details within the period worked out in accordance with the regulations.
(7) The regulations may prescribe different periods in relation to details about suspensions or cautions.
288 Application for registration
(1) An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.
Publishing requirement
(2) The individual must satisfy 1 of 2 publishing options set out in section 288A (unless he or she has been registered at some time in the 12 months immediately before making the application).
Form of application
(3) 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
(4) 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
(5) 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
(6) 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:
(a) satisfied one of those options; and
(b) given the Authority evidence of the publication concerned.
Proceedings finalised about previous registration
(6A) If:
(a) the applicant has been registered at some time before making the application; and
(b) 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 Administrative Appeals Tribunal Act 1975 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
(7) 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.
288A Publishing requirement
(1) For the purposes of subsection 288(2), this section sets out an individual’s 2 publishing options.
Individual publication
(2) The first option is for the individual to publish in the prescribed way a notice:
(a) stating his or her intention to apply for registration; and
(b) 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
(3) 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:
(a) stating their intention to apply for registration; and
(b) 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).
288B Requiring applicants to make statutory declarations or to answer questions
(1) The Migration Agents Registration Authority may require an applicant who, on the day the application is taken to have been made, is not a registered migration agent:
(a) to make a statutory declaration in relation to information or documents provided by the applicant in relation to the application; or
(b) to appear before one or more individuals specified by the Authority and to answer questions in relation to the application.
(2) If an applicant is required under this section to make a statutory declaration or to answer questions, the Authority must not further consider the application until the applicant does so.
289 Registration
(1) 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.
(2) The Migration Agents Registration Authority must do so as soon as possible.
(3) However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:
(a) the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and
(b) the Authority must consider any objection received within that time when deciding whether to register the applicant.
(4) Subject to subsection 300(6), if the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).
289A Applicant must not be registered if does not satisfy registration requirements
An applicant:
(a) who has never been registered; or
(b) who is applying to be registered more than 12 months after the end of his or her previous registration;
must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:
(c) has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or
(d) holds the prescribed qualifications.
290 Applicant must not be registered if not a person of integrity or not fit and proper
(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance; or
(b) the applicant is not a person of integrity; or
(c) 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.
(2) 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:
(a) the extent of the applicant’s knowledge of migration procedure; and
(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g) any bankruptcy (present or past) of the applicant; and
(h) any other matter relevant to the applicant’s fitness to give immigration assistance.
(3) 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 Part VIIC of the Crimes Act 1914);
(b) any criminal proceedings that the individual is the subject of;
(c) any inquiry or investigation that the individual is or has been the subject of;
(d) any disciplinary action that is being taken, or has been taken, against the individual;
(e) any bankruptcy (present or past) of the individual.
(4) To avoid doubt, this section applies to all applicants (not just first time applicants).
290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development
If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the prescribed period, the requirements prescribed by the regulations for continuing professional development of registered migration agents.
290B Applicant must not be registered if any unpaid registration status charge
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.
291 Applicant must not be registered if registration refused in past year
(1) 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.
(2) To avoid doubt, this section applies to all applicants (not just first time applicants).
291A Applicant must not be registered if suspension would be in effect
If:
(a) an applicant has been registered (the previous registration) at some time before making the application; and
(b) the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and
(c) 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.
292 Applicant must not be registered if registration cancelled in past 5 years
An applicant whose registration has been cancelled under section 303, 306AG or 306AGAC must not be registered within 5 years of the cancellation.
292A Applicant must not be registered if any barring period has not ended
An applicant must not be registered if:
(a) the Migration Agents Registration Authority has made a decision under subsection 311A(1) or 311L(1) to bar him or her from being a registered migration agent for a particular period; and
(b) the period has not ended.
292B Applicant must not be registered unless he or she holds appropriate professional indemnity insurance
(1) 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.
(2) To avoid doubt, this section applies to all applicants (not just first time applicants).
293 Applicant under 18 must not be registered
An applicant must not be registered if he or she is under 18.
294 Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa
(1) An applicant must not be registered unless he or she is:
(a) an Australian citizen; or
(b) an Australian permanent resident (within the meaning of the regulations); or
(c) a New Zealand citizen who holds a special category visa.
(2) To avoid doubt, this section applies to all applicants (not just first time applicants).
295 Notice of refusal of application
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 Administrative Appeals Tribunal for review of the decision. See section 306 of this Act. (Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority’s decision be given notice of their rights to seek review of the decision.)
299 Period of registration
(1) Subject to sections 300, 302, 303, 306AG and 306AGAC and subsection (3), the registration of a registered migration agent lasts for 12 months after the registration.
(3) If the registration of a registered migration agent is suspended for a period, the current period of the agent’s registration is extended by a period equal to that period of suspension.
300 Automatic continuation of registration
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:
(a) the agent made a registration application; and
(b) the agent paid the registration application fee (if any) in respect of the application; and
(c) the Migration Agents Registration Authority had not decided the application.
Exception—suspension
(2) 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:
(a) the suspension had been completed before the end of the expiry day; or
(b) there was a decision (other than a stay order) of the Administrative Appeals Tribunal 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
(3) 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:
(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal 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
(b) there was a decision of the Administrative Appeals Tribunal 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
(4) The agent’s registration is taken to continue after the expiry day until the earliest of the following:
(a) the Authority decides the application;
(b) the Authority decides to suspend the agent’s registration;
(c) the Authority decides to cancel the agent’s registration;
(d) 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
(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application; and
(b) decided to suspend the agent’s registration; and
(c) 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
(6) 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
(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.
301 Migration Agents Registration Authority must warn of expiry
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.
302 Automatic deregistration
(1) The Migration Agents Registration Authority must deregister a registered migration agent by removing his or her name from the Register if:
(a) he or she requests the Authority, in writing, to do so; or
(d) he or she dies.
303 Disciplining registered migration agents
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Note 1: The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.
Note 2: 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
(2) 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.
304 Period of suspension
(1) If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
(2) 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.
304A Conditions for lifting cautions
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.
305 Notice of disciplinary decision
Notice to agent
(1) 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.
(2) The notice must set out the reasons for the decision.
When decision takes effect
(3) 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.
305A Making disciplinary details publicly available
(1) If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:
(a) 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
(b) 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
(3) 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
(4) No action or other proceeding for damages lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
305B Providing disciplinary details to clients
(1) If the Migration Agents Registration Authority makes a decision under section 303 in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:
(a) the making of the decision;
(b) whether or not the agent has applied for review of the decision;
(c) the status of any such review.
(3) In this section:
client has the meaning given by section 306C.
305C Requiring registered migration agents to give information or documents
(1) This section applies if the Migration Agents Registration Authority is considering:
(a) refusing a registration application from a registered migration agent; or
(b) making a decision under section 303 to cancel or suspend such an agent’s registration or to caution such an agent.
(2) 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.
(3) 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
(4) A person commits an offence if:
(a) the person is subject to a requirement under this section; and
(b) the person contravenes the requirement.
Penalty: 60 penalty units.
(5) 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
(6) 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.
(7) However:
(a) any information or document provided in response to a requirement under subsection (2); and
(b) 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 section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
306 Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.
306AA Stay orders
If the Administrative Appeals Tribunal 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.
Division 3AA—Disciplining registered migration agents for engaging in vexatious activity
Subdivision A—Definitions
306AB Definitions
In this Division:
mandatory decision means a decision of the Migration Agents Registration Authority under paragraph 306AG(1)(a), (b) or (c) or subsection 306AGAC(1).
referral decision means a decision of the Minister under subsection 306AC(1) or 306AGAA(8).
Subdivision B—Referral of registered migration agents for disciplinary action
306AC Minister may refer registered migration agent to the Migration Agents Registration Authority
Referral
(1) The Minister may refer a registered migration agent to the Migration Agents Registration Authority if the agent has a high visa refusal rate in relation to a visa of a particular class.
Note 1: If the Minister is considering doing so, the Minister must invite the agent to make a submission on the matter and must consider any submission that is made: see section 306AE.
Note 2: If the Minister refers an agent, the Authority must consider whether to discipline the agent: see section 306AG.
Note 3: The Minister’s decision and any decision of the Authority to discipline the agent are reviewable by the Administrative Appeals Tribunal: see section 306AJ.
High visa refusal rate
(2) This is how to work out if the agent has a high visa refusal rate in relation to a visa of a particular class:
Method statement
Step 1. Work out the number of:
(a) valid applications for a visa of that class; and
(b) applications for review by a review authority of a decision to refuse to grant a visa of that class;
made during a period determined by the Minister under this Division in respect of which the agent has given immigration assistance to the applicants concerned.
Note: Subsections (3) and (4) provide for certain applications not to be counted.
Step 2. Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division.
Step 3. If it is, work out in respect of the applications covered by step 1 the number of decisions to refuse to grant a visa that are standing at the end of all the proceedings (including any appeals) resulting from such decisions.
Step 4. The agent has a high visa refusal rate in relation to a visa of that class once the number at step 3 expressed as a percentage of the number at step 1 is equal to or greater than the percentage determined by the Minister under this Division in relation to that class of visa.
Immigration assistance at visa application stage and review stage
(3) If:
(a) the agent gives immigration assistance to a person in respect of a valid application by the person for a visa of a particular class; and
(b) the agent later gives immigration assistance to the person in respect of an application (the review application) by the person for review by a review authority of a decision to refuse to grant that visa;
then the review application is not to be counted for the purposes of step 1 of the method statement.
Immigration assistance in a prescribed capacity
(4) An application of a kind covered by step 1 of the method statement is not to be counted if the agent gave the immigration assistance in a prescribed capacity.
Minister to have regard to any matter prescribed by the regulations
(5) In deciding whether or not to refer a registered migration agent to the Migration Agents Registration Authority under this section, the Minister must have regard to any matter prescribed by the regulations.
306AD Ministerial determinations
Period for making applications
(1) The Minister may, by legislative instrument, determine a period for the purposes of step 1 of the method statement in section 306AC.
Minimum number of applications
(2) The Minister may, by legislative instrument, determine a number for the purposes of step 2 of that method statement.
Refusal percentage
(3) The Minister may, by legislative instrument, determine a percentage for a specified class of visa for the purposes of step 4 of that method statement.
306AE Registered migration agent may make submissions
(1) If the Minister is considering referring a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Minister must give the agent a written notice:
(a) stating that the Minister is considering making such a decision and the reasons for it; and
(b) inviting the agent to make a written submission to the Minister:
(i) on the reasons for the agent having a high visa refusal rate in relation to the class of visa concerned; and
(ia) on the disciplinary action that may be taken against the agent if the Minister decides to refer the agent; and
(ii) on any other matter the agent considers relevant; and
(c) stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.
Extension
(2) Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.
(3) The Minister must grant an extension of 14 days if the notice contains reasons for the request.
Minister to consider any submission
(4) The Minister must consider any written submission received within the objection period (or that period as extended).
306AF Notice of referral decision under section 306AC
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AC to refer a registered migration agent to the Authority.
(2) The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.
(2A) The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AE(1).
Notice to agent
(3) The Minister must give the registered migration agent written notice of the decision to refer him or her to the Authority.
(4) The notice must be given to the agent on the same day that notice of the referral is given to the Authority.
(5) The notice given to the agent must set out the grounds for the referral.
306AG Migration Agents Registration Authority’s decision after a referral under section 306AC
(1) If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Authority must:
(a) caution the agent; or
(b) suspend the agent’s registration; or
(c) cancel the agent’s registration; or
(d) decide not to discipline the agent if the Authority is satisfied that there are special circumstances that justify it making the decision.
Findings of fact
(2) In making its decision under subsection (1), the Authority must take the findings of fact made by the Minister in relation to the decision to refer the agent to be correct.
Matters Authority must take into account
(3) The Authority must take only the following matters into account in making its decision under subsection (1):
(a) any written submission made to the Minister under subsection 306AE(1) by the agent;
(b) the findings of fact made by the Minister in relation to the decision to refer the agent;
(c) the grounds given by the Minister for the decision to refer the agent.
Natural justice hearing rule
(4) This section, section 306AE and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.
Note: Section 306AE requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.
Time of decision
(5) The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.
Note: Section 494C sets out when the Authority is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.
(7) 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.
Decision to take no disciplinary action
(8) If the Authority decides not to discipline the agent, the Authority must give the Minister written notice of its decision. The notice must set out the reasons for the decision. It must be given to the Minister on the same day that notice of the decision is given to the agent.
306AGAA Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action
(1) If the Migration Agents Registration Authority decides not to discipline a registered migration agent under section 306AG, the Minister must decide whether or not to refer the agent to the Authority for disciplinary action under section 306AGAC.
Minister to consider Authority’s reasons
(2) In making his or her decision, the Minister must consider the reasons given by the Authority for its decision not to discipline the agent.
Minister must invite and consider submissions from agent
(3) If the Minister is considering referring the agent to the Authority for disciplinary action, the Minister must give the agent a written notice:
(a) stating that the Minister is considering making such a decision and the reasons for it; and
(b) inviting the agent to make a written submission to the Minister:
(i) in relation to the reasons given by the Authority for its decision not to discipline the agent; and
(ii) on the disciplinary action to be taken against the agent if the Minister decides to refer the agent; and
(iii) on any other matter the agent considers relevant; and
(c) stating that any submission must be made within the period (the objection period) of 14 days after the notice is given.
(4) Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.
(5) The Minister must grant an extension of 14 days if the notice contains reasons for the request.
(6) The Minister must consider any written submission received within the objection period (or that period as extended).
(7) The Minister must also consider any written submission made to him or her under subsection 306AE(1) in relation to his or her decision to refer the agent to the Authority under section 306AC.
Minister’s decision to refer agent
(8) After considering the matters mentioned in subsections (2), (6) and (7), the Minister may refer the agent to the Authority for disciplinary action.
Note 1: If the Minister refers the agent, the Authority must discipline the agent: see section 306AGAC.
Note 2: The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 306AJ.
306AGAB Notice of referral decision under section 306AG
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AGAA to refer a registered migration agent to the Authority for disciplinary action.
(2) The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.
(3) The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AGAA(3).
Notice to agent
(4) The Minister must give the agent written notice of the decision to refer him or her to the Authority for disciplinary action.
(5) The notice must be given to the agent on the same day that notice of the referral is given to the Authority.
(6) The notice given to the agent must set out the grounds for the referral.
306AGAC Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA
(1) If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AGAA for disciplinary action, the Authority must:
(a) caution the agent; or
(b) suspend the agent’s registration; or
(c) cancel the agent’s registration.
Findings of fact
(2) In making its decision, the Authority must take the findings of fact made by the Minister in relation to the following decisions (the referral decisions) to be correct:
(a) the decision to refer the agent under section 306AC;
(b) the decision to refer the agent under section 306AGAA.
Matters Authority must take into account
(3) The Authority must take only the following matters into account in making its decision under subsection (1):
(a) any written submission made to the Minister under subsection 306AE(1) or 306AGAA(3) by the agent;
(b) the findings of fact made by the Minister in relation to the referral decisions;
(c) the grounds given by the Minister for the referral decisions.
Natural justice hearing rule
(4) This section, section 306AGAA and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.
Note: Section 306AGAA requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.
Time of decision
(5) The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.
Note: Section 494C sets out when the Authority is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.
(7) 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.
306AGA Cautions or suspensions
Cautions
(1) If the Migration Agents Registration Authority cautions a registered migration agent under section 306AG or 306AGAC, the Authority may set one or more conditions for the lifting of the caution.
Note: Particulars of cautions are shown on the Register: see section 287.
Suspensions
(2) If the Authority suspends a registered migration agent’s registration under section 306AG or 306AGAC, the Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
(3) If 2 or more conditions are set under paragraph (2)(b), one of them may be that at least a set period of suspension has ended.
Subdivision D—Review
306AJ Review by the Administrative Appeals Tribunal
(1) An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.
Timing rules for review of a referral decision
(2) However, an application for review of a referral decision may only be made:
(a) if a mandatory decision is made as a result of the referral decision; and
(b) within the period within which an application for review of the mandatory decision may be made.
(3) Accordingly, paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 does not apply to an application for review of a referral decision.
306AK Stay orders
If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 306AG or 306AGAC 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.
Subdivision E—Making disciplinary details available
306AL Making disciplinary details publicly available
(1) If a registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:
(a) must as soon as possible make available in the prescribed way a statement that:
(i) sets out the mandatory decision; and
(ii) sets out the referral decision to which the mandatory decision relates; and
(iii) specifies the grounds for the referral decision; and
(b) may prepare a statement about the mandatory decision and the referral 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 mandatory decision or the referral decision.
Content of statement
(3) 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
(4) No action or other proceeding for damages lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
306AM Providing disciplinary details to clients
(1) If the Migration Agents Registration Authority makes a mandatory decision in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:
(a) the making of the mandatory decision;
(b) the making of the referral decision that resulted in the making of the mandatory decision;
(c) whether or not the agent has applied for review of the referral decision or the mandatory decision;
(d) the status of any such review.
(3) In this section:
client has the meaning given by section 306C.
Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents
306A Objects of this Division
The objects of this Division are:
(a) to ensure that clients of inactive migration agents are not unduly disadvantaged by the agent becoming inactive; and
(b) 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:
(c) obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and
(d) give the originals or copies to the clients concerned.
Note: An agent becomes inactive as a result of expiry of registration, deregistration, cancellation of registration, suspension of registration, or incapacity (see section 306B).
306B Inactive migration agents
For the purposes of this Division:
(a) 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
(ii) 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
(b) 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
(ii) 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
(c) if the Migration Agents Registration Authority cancels a person’s registration under section 303, 306AG or 306AGAC:
(i) the person becomes an inactive migration agent at the time of the cancellation; and
(ii) the person remains an inactive migration agent for 2 years; and
(d) if the Migration Agents Registration Authority suspends a person’s registration under section 303, 306AG or 306AGAC:
(i) the person becomes an inactive migration agent at the time of the suspension; and
(ii) the person remains an inactive migration agent for the period of the suspension; and
(e) 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
(ii) the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.
306C Clients
For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:
(a) the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and
(b) if the registered migration agent becomes an inactive migration agent—the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.
306D Power to obtain documents from inactive migration agent
(1) This section applies to a person who is an inactive migration agent if the Migration Agents Registration Authority has reason to believe that:
(a) 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
(b) the inactive migration agent has in his or her possession or control documents that:
(i) are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
(ii) relate to the affairs of those clients.
(2) The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:
(a) 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
(b) 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.
(3) A notice under subsection (2) must set out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need not identify any particular client or clients.
(5) 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.
306E Power to obtain documents from representative of deceased inactive migration agent
(1) 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:
(a) 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
(b) the legal personal representative has in his or her possession or control documents that:
(i) are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
(ii) relate to the affairs of those clients.
(2) The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:
(a) 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
(b) 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.
(3) A notice under subsection (2) must set out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need not identify any particular client or clients.
(5) 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.
306F Power to obtain documents from representative of deceased registered migration agent
(1) 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:
(a) while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and
(b) the legal personal representative has in his or her possession or control documents that:
(i) are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and
(ii) relate to the affairs of those clients.
(2) The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:
(a) 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
(b) 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.
(3) A notice under subsection (2) must set out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need not identify any particular client or clients.
(5) 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.
306G Reasonable compensation
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a notice under section 306D, 306E or 306F.
306H Failure to comply with notice
(1) A person commits an offence if:
(a) the person is subject to a requirement under section 306D, 306E or 306F; and
(b) the person contravenes the requirement.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
306J Self‑incrimination
(1) 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.
(2) However:
(a) any document so produced; and
(b) 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 section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
306K Migration Agents Registration Authority to give client documents to clients
(1) If:
(a) a document is given to the Migration Agents Registration Authority under section 306D by an inactive migration agent; and
(b) 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:
(c) give the document to:
(i) the client; or
(ii) if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and
(d) give the client information about how to contact other registered migration agents.
(2) If:
(a) a document is given to the Migration Agents Registration Authority under section 306E or 306F by the legal personal representative of:
(i) a deceased inactive migration agent; or
(ii) a deceased registered migration agent; and
(b) 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:
(c) give the document to:
(i) the client; or
(ii) if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and
(d) give the client information about how to contact other registered migration agents.
306L Compensation—constitutional safety‑net
(1) If:
(a) 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
(b) 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.
(2) 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.
(3) A provision of this Act (other than this Division) that provides for compensation for the acquisition of property does not apply to this Division.
(4) 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.
Division 4—Investigations and decision‑making by the Migration Agents Registration Authority
308 Requiring registered migration agents to give information
(1) The Migration Agents Registration Authority may require a registered migration agent:
(a) to make a statutory declaration in answer to questions in writing by the Authority; or
(b) to appear before an individual or individuals specified by the Authority and to answer questions; or
(c) to provide the Authority with specified documents or records relevant to the agent’s continued registration.
(2) 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.
(2A) 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.
(3) 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.
(4) However:
(a) any information or document provided in response to a requirement under subsection (1); and
(b) 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 section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
309 Persons may make submissions
(1) 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.
(2) 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.
(3) In this section:
submission means:
(a) a statutory declaration; or
(b) a written argument.
310 Persons may appear before Migration Agents Registration Authority
(1) This section applies where the Migration Agents Registration Authority has invited a submission on a matter under section 309.
(2) If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it.
(3) If the Migration Agents Registration Authority receives a submission, it may:
(a) decide the matter; or
(b) give the person who made the submission the opportunity to appear before it and then decide the matter.
311 Migration Agents Registration Authority not bound by legal forms etc.
The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary action under section 303:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Division 4A—Disciplining former registered migration agents
Subdivision A—Complaints about provision of immigration assistance
311A Barring former registered migration agents from being registered for up to 5 years
(1) 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.
(2) The period must not be more than 5 years starting on the day of the Authority’s decision.
311B Notice of disciplinary decision
Notice to former agent
(1) 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.
(2) 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
(3) 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.
311C Making disciplinary details publicly available
(1) If a former registered migration agent is given notice of a decision under section 311A, then the Migration Agents Registration Authority:
(a) 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
(b) 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
(3) 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
(4) No action or other proceeding for damages lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
311D Former registered migration agent may make a submission etc.
Invitation to make submission
(1) Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:
(a) stating that the Authority proposes to make such a decision and the reasons for it; and
(b) 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
(2) The Authority must consider any written submission received within that period.
No submission received
(3) If the Authority does not receive a written submission, it may decide the matter on the information before it.
Submission received
(4) If the Authority receives a written submission, it may:
(a) decide the matter; or
(b) give the former registered migration agent the opportunity to appear before it and then decide the matter.
311E Authority not bound by legal forms etc.
In considering making a decision under subsection 311A(1), the Migration Agents Registration Authority:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
311EA Requiring former registered migration agents to give information or documents
(1) 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.
(2) 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.
(3) 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
(4) A person commits an offence if:
(a) the person is subject to a requirement under this section; and
(b) the person contravenes the requirement.
Penalty: 60 penalty units.
(5) 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
(6) 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.
(7) However:
(a) any information or document provided in response to a requirement under subsection (2); and
(b) 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 section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
311F Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).
Subdivision B—Engaging in vexatious activity
311G Definitions
In this Subdivision:
mandatory decision means a decision of the Migration Agents Registration Authority under section 311L.
referral decision means a decision of the Minister under section 311H.
311H Minister may refer former registered migration agent for disciplinary action
(1) The Minister may refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action if, in relation to his or her provision of immigration assistance while he or she was a registered migration agent, he or she had a high visa refusal rate in relation to a visa of a particular class.
Note 1: If the Minister is considering doing so, the Minister must invite the former agent to make a submission on the matter and must consider any submission that is made: see section 311J.
Note 2: If the Minister does refer a former agent, the Authority must discipline the former agent: see section 311L.
Note 3: The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 311M.
(2) In deciding whether or not to refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must have regard to any matter prescribed by the regulations.
311J Former registered migration agent may make submissions
(1) If the Minister is considering referring a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must give the former agent a written notice:
(a) stating that the Minister is considering making such a decision and the reasons for it; and
(b) inviting the former agent to make a written submission to the Minister:
(i) on the reasons for the former agent having a high visa refusal rate in relation to the class of visa concerned; and
(ia) on the period the former agent is to be barred from being a registered migration agent if the Minister decides to refer the former agent; and
(ii) on any other matter the former agent considers relevant; and
(c) stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.
Extension
(2) Before the end of the objection period, the former agent may, by notice in writing, request an extension of that period.
(3) The Minister must grant an extension of 14 days if the notice contains reasons for the request.
Minister to consider any submission
(4) The Minister must consider any written submission received within the objection period (or that period as extended).
311K Notice of referral decision
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration Agents Registration Authority written notice of a decision to refer a former registered migration agent to the Authority for disciplinary action.
(2) The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.
(2A) The notice must be accompanied by a copy of any submission made to the Minister under subsection 311J(1).
Notice to former agent
(3) The Minister must give the former registered migration agent written notice of the decision to refer him or her to the Authority for disciplinary action.
(4) The notice must be given to the former agent on the same day that notice of the referral is given to the Authority.
(5) The notice given to the former agent must set out the grounds for the referral.
311L Taking of disciplinary action
(1) If the Minister refers a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Authority must bar him or her from being a registered migration agent for a period of not more than 5 years starting on the day that the Authority’s decision takes effect.
Findings of fact
(2) In making its decision, the Authority must take the findings of fact made by the Minister in relation to the referral decision to be correct.
Matters Authority must take into account
(3) The Authority must take only the following matters into account in making its decision under subsection (1):
(a) any written submission made to the Minister under subsection 311J(1) by the former agent;
(b) the findings of fact made by the Minister in relation to the referral decision;
(c) the grounds given by the Minister for the referral decision.
Natural justice hearing rule
(4) This section, section 311J and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.
Note: Section 311J requires the Minister to give the former agent an opportunity to make a submission before the Minister refers the former agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.
Time of decision
(5) The Authority must make its decision under subsection (1) as soon as possible, but not later than 14 days, after receiving notice of the referral.
Note: Section 494C sets out when the Authority is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the former agent written notice of its decision. The notice must set out the reasons for the decision.
(7) 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.
311M Review by the Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.
311P Making disciplinary details publicly available
(1) If a former registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:
(a) must as soon as possible make available in the prescribed way a statement that:
(i) sets out the mandatory decision; and
(ii) sets out the referral decision to which the mandatory decision relates; and
(iii) specifies the grounds for the referral decision; and
(b) may prepare a statement about the mandatory decision and the referral 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 mandatory decision or the referral decision.
Content of statement
(3) 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
(4) No action or other proceeding for damages lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
Division 5—Obligations of registered migration agents
312 Notification obligations
(1) A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:
(a) he or she becomes bankrupt;
(b) he or she applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
(c) he or she compounds with his or her creditors;
(d) he or she makes an assignment of remuneration for the benefit of his or her creditors;
(e) he or she is convicted of an offence under a law of the Commonwealth or of a State or Territory;
(ea) if he or she paid, in relation to his or her current period of registration, the charge payable under regulation 5 of the Migration Agents Registration Application Charge Regulations 1998—he or she begins to give immigration assistance:
(i) on a commercial, or for‑profit, basis; or
(ii) as a member of, or a person associated with, an organisation that operates on a commercial, or for‑profit, basis;
(f) he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;
(fa) he or she becomes a member of a partnership and will give immigration assistance in that capacity;
(g) 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;
(h) if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:
(i) a receiver of its property or part of its property is appointed; or
(iii) it begins to be wound up.
Penalty: 100 penalty units.
(2) 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 day on which the event mentioned in paragraph (1)(ea) occurs is to be worked out in accordance with the Migration Agents Registration Application Charge Regulations 1998.
312A Notification of giving of immigration assistance to visa applicants
(1) If:
(a) a registered migration agent gives immigration assistance to a visa applicant in relation to the visa application; and
(b) 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.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
312B Notification of giving of immigration assistance to review applicants
(1) If:
(a) a registered migration agent gives immigration assistance to a person in respect of a review application made by the person; and
(b) the agent gives the assistance after having agreed to represent the person;
the agent must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) In this section:
review application means an application for review by a review authority of a decision to refuse to grant a person a visa.
313 Persons charged for services to be given detailed statement of services
(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.
(2) A statement of services must set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she:
(a) made the payment to a registered migration agent for giving immigration assistance; and
(b) did not receive a statement of services before making the payment; and
(c) does not receive a statement of services within the period worked out in accordance with the regulations.
(4) This section does not apply to the giving of immigration legal assistance by a lawyer.
314 Code of Conduct for migration agents
(1) The regulations may prescribe a Code of Conduct for migration agents.
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
Division 6—Migration Agents Registration Authority
315 Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority
(1) The Minister may make a written instrument appointing the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.
Note: The Minister may also revoke the appointment. See subsection 33(3) of the Acts Interpretation Act 1901.
(2) An appointment or revocation of an appointment does not affect an earlier exercise of a power, or performance of a function, of the Migration Agents Registration Authority. Anything done by, or in relation to, the person who was the Authority before the appointment or revocation, is taken to have been done by, or in relation to, the person who is the Authority afterwards.
316 Functions of Migration Agents Registration Authority
(1) The functions of the Migration Agents Registration Authority are:
(a) to deal with registration applications in accordance with this Part; and
(b) to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
(d) to take appropriate disciplinary action against registered migration agents or former registered migration agents; and
(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and
(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
(g) to monitor the adequacy of any Code of Conduct; and
(h) such other functions as are conferred on the Authority by this Part.
(1A) 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.
(1B) 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.
(2) So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.
317 General powers of the Migration Agents Registration Authority
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.
318 Power to refer people to mediation
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.
319 Power to refer lawyers’ conduct to other authorities
(1) The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent, who holds a practising certificate (however described) entitling him or her to practise as a lawyer.
Conduct of registered migration agents
(2) 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
(3) 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.
319A Institute may delegate powers and functions
(1) While the Institute is appointed under section 315, the Institute may, by writing, delegate any or all of the Migration Agents Registration Authority’s functions or powers under this Part to:
(a) a committee of the Institute; or
(b) an officer of the Institute; or
(c) an employee of the Institute.
Directions
(2) In performing a delegated function or exercising a delegated power, a delegate must comply with any written directions given by the Institute.
How committee to perform function or exercise power
(3) A function or power so delegated to a committee may be performed or exercised by a majority of the members of the committee and may not otherwise be performed or exercised under the delegation.
320 Minister may delegate powers and functions
(1) The Minister may delegate any of the Migration Agents Registration Authority’s powers or functions under this Part to a person in the Department who is appointed or engaged under the Public Service Act 1999, for any period when the Institute is not appointed under section 315.
(2) A delegation must be in writing signed by the Minister.
(3) 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.
321 Disclosure of personal information to the Migration Agents Registration Authority
Overview
(1) This section authorises certain disclosures of personal information for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority.
Disclosure by the Department to the Authority
(2) The Department may make a disclosure to the Migration Agents Registration Authority.
Disclosure by the Minister
(3) If the Minister appoints the Institute under section 315, the Minister may make a disclosure to the Institute or an officer or employee of the Institute.
Note: Section 315 lets the Minister appoint the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.
Preliminary disclosure to the Institute
(4) The Department or the Minister may make a disclosure to the Institute or an officer or employee of the Institute at a time when the Minister has made an instrument appointing the Institute under section 315 but the instrument has not taken effect.
Section not limited to information obtained after commencement
(5) The Department or the Minister may disclose information whether it was obtained before or after the commencement of this section.
321A Disclosure of personal information by the Migration Agents Registration Authority
(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):
(a) the Secretary or an authorised officer;
(b) a review authority.
(2) However, the Authority may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning given by section 306B.
322 Annual report
(1) If an appointment of the Institute under section 315 is in force at the end of a financial year, the Institute must give a report on the administration of this Part during the financial year to the Minister for presentation to the Parliament.
Note: Section 34C of the Acts Interpretation Act 1901 explains when the Institute must give the report to the Minister, and when the Minister must cause the report to be tabled in each House of the Parliament.
(2) If an appointment of the Institute under section 315 is not in force at the end of the financial year, the Minister must cause to be tabled in each House of the Parliament a report on the administration of this Part during the financial year, before the end of the 15th sitting day of that House after the 31 December immediately following the financial year.
Division 6A—Registration application fees and registration status charges
332A Collection of registration status charge
When charge due and payable
(1) 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
(3) 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.
332B Payments to Migration Institute of Australia Limited
(1) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration application fees collected while an instrument under section 315 appointing the Institute is in force.
(1A) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration status charges collected (including amounts recovered under section 332A) while an instrument under section 315 appointing the Institute is in force.
(2) The Consolidated Revenue Fund is appropriated for the purposes of this section.
Division 7—Other things
332C Removing disciplinary details—registered migration agents
(1) The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:
(a) any statement relating to the cancellation or suspension of a registered migration agent’s registration;
(b) any statement about the cautioning of such an agent.
Time for removal
(2) The Authority must remove the details within the period worked out in accordance with the regulations.
(3) The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.
332D Removing disciplinary details—former registered migration agents
(1) The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.
(2) The Authority must remove the statement within the period worked out in accordance with the regulations.
332E Protection from civil proceedings
Complaints about registered migration agents
(1) 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:
(a) the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;
(b) 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
(2) 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:
(a) 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;
(b) 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;
(c) the investigation of such a complaint.
Institute etc.
(3) The Institute, or an officer or employee of the 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:
(a) the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;
(b) the exercise or purported exercise of any power conferred on the Authority under this Part.
Commonwealth etc.
(4) None of the following:
(a) the Commonwealth;
(b) the Minister;
(c) an officer;
(d) 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:
(e) the performance or purported performance of any function conferred on the Minister under this Part;
(f) the exercise or purported exercise of any power conferred on the Minister under this Part.
332F Disclosure of personal information by the Secretary
(1) The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.
(2) However, the Secretary may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning given by section 306B.
332G Disclosure of personal information by a review authority
Discretionary disclosure
(1) A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.
(2) However, a review authority may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).
Mandatory disclosure
(4) If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority 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
(5) In this section:
inactive migration agent has the meaning given by section 306B.
review application means an application for review by a review authority of a decision to refuse to grant a person a visa.
332H Giving of notices under this Part
(1) If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):
(a) the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and
(b) the time at which the recipient is taken to have been given the notice is the time set out in the table.
Giving of notices under this Part |
Item | Methods of giving notices | Timing rule |
1 | Handing the notice to the recipient | When it is handed to the recipient |
2 | Handing the notice to another person who: (a) is at the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age | When it is handed to the other person |
3 | Dating the notice, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the notice; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Authority by the recipient for the purposes of receiving notices; or (ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices | (a) if the notice 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 notice; or (b) in any other case—21 days after the date of the notice |
4 | Transmitting the notice by: (a) fax; or (b) email; or (c) other electronic means; to the last fax number, email address or other electronic address, as the case may be, provided to the Authority by the recipient for the purposes of receiving notices | At the end of the day on which the notice is transmitted |
(2) This section has effect despite any provision in the Electronic Transactions Act 1999.
Part 4—Offences relating to decisions under Act
334 Offences in relation to false or misleading statements regarding the making of decisions
(1) A person commits an offence if:
(a) the person makes a statement; and
(b) the statement is about:
(i) the person’s ability or power; or
(ii) another person’s ability or power;
to induce or influence the making of decisions, or of a particular decision, under this Act; and
(c) the statement is false or misleading.
(2) A person commits an offence if:
(a) the person makes a statement; and
(b) the statement is about the effect of:
(i) the person’s actions; or
(ii) another person’s actions;
on the making of a decision under this Act; and
(c) the statement is false or misleading.
Penalty: Imprisonment for 2 years.
335 Offence of undertaking, for reward, to cause decisions to be made etc.
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.
336 Court may order reparation for loss suffered
(1) Where:
(a) a person is convicted by a court of an offence against this Part; and
(b) 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.
(2) Where:
(a) a court makes an order for the making of reparation by payment of an amount of money; and
(b) the clerk, or other appropriate officer, of the court signs a certificate specifying:
(i) the amount ordered to be paid; and
(ii) the person by whom the amount is to be paid; and
(iii) the person to whom the amount is to be paid; and
(c) 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.
(3) 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.
(4) If an amount paid by a person could be recovered by the person under section 313, the following provisions apply:
(a) 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;
(b) 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.
Part 4A—Obligations relating to identifying information
Division 1—Preliminary
336A Definitions
In this Part:
data base means a discrete body of information stored by electronic means, containing:
(a) indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and
(b) 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.
Note: Section 336D deals with authorised access to identifying information.
identifying information means the following:
(a) any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);
(b) any meaningful identifier derived from any such personal identifier;
(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d) 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.
336B Application
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.
Division 2—Accessing identifying information
336C Accessing identifying information
(1) A person commits an offence if:
(a) the person accesses identifying information; and
(b) 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.
(1A) 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).
(2) 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).
336D Authorising access to identifying information
(1) 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.
(2) 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:
(a) one or more of the purposes set out in subsection 5A(3);
(b) disclosing identifying information in accordance with this Part;
(c) administering or managing the storage of identifying information;
(d) making identifying information available to the person to whom it relates;
(e) modifying identifying information to enable it to be matched with other identifying information;
(f) modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
(g) the purposes of:
(i) 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
(iv) any other law of the Commonwealth prescribed by the regulations;
(h) complying with laws of the Commonwealth or the States or Territories.
(3) 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:
(a) investigating an offence against a law of the Commonwealth or a State or Territory; or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
Division 3—Disclosing identifying information
336E Disclosing identifying information
(1) A person commits an offence if:
(a) the person’s conduct causes disclosure of identifying information; and
(b) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(1A) 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:
(a) is for the purpose of data‑matching in order to:
(i) identify, or authenticate the identity of, a person; or
(ii) facilitate the processing of persons entering or departing from Australia; or
(iii) identify non‑citizens who have a criminal history or who are of character concern; or
(iiia) identify persons who may be a security concern to Australia or a foreign country; or
(iv) combat document and identity fraud in immigration matters; or
(v) ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or
(vi) 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
(b) is for the purpose of administering or managing the storage of identifying information; or
(ba) is for the purpose of:
(i) 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
(iv) any other law of the Commonwealth prescribed by the regulations; or
(c) is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or
(d) is for the purpose of making the identifying information in question available to the person to whom it relates; or
(da) 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
(e) 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
(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or
(eb) is required by or under a law of the Commonwealth or of a State or Territory; or
(ec) is for the purpose of identifying non‑citizens who have a criminal history or who are of character concern; or
(ed) is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or
(f) is for the purpose of a proceeding, before a court, the Tribunal or another tribunal, or the Immigration Assessment Authority, relating to the person to whom the identifying information in question relates; or
(g) is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or
(ga) is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or
(gb) 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
(gc) is for the purposes of:
(i) 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
(ii) 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
(h) 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:
(i) carrying out an identification test; or
(ii) requiring the provision of a personal identifier; or
(ha) 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
(ii) transcribing or translating the recording, or conducting language analysis or accent analysis of the recording; or
(i) takes place with the written consent of the person to whom the identifying information in question relates; or
(j) is authorised by section 336FA; or
(k) is authorised by section 336FC.
(3) However, a disclosure is not a permitted disclosure if:
(a) it is a disclosure of identifying information relating to a personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the Commonwealth or a State or Territory; or
(ii) prosecuting a person for such an offence.
336F Authorising disclosure of identifying information to foreign countries etc.
(1) 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:
(a) one or more specified foreign countries;
(b) one or more specified bodies each of which is:
(i) a police force or police service of a foreign country; or
(ii) a law enforcement body of a foreign country (including a war crimes tribunal); or
(iii) a border control body of a foreign country;
(c) 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;
(d) one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;
(e) one or more prescribed international organisations.
(2) 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).
(3) A disclosure is taken not to be authorised under this section if:
(a) the person to whom the identifying information relates is:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
(b) the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.
(4) A disclosure is taken not to be authorised under this section if:
(a) the person to whom the identifying information relates is:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
(b) 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.
(5) However, if:
(a) 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
(b) the person is an applicant for a protection visa, and the application has been refused and finally determined; or
(c) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection as a refugee; and
(ii) who, following assessment of his or her claim, is found not to be a person in respect of whom Australia has protection obligations; or
(ca) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) 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
(cb) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) 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
(cc) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) 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:
(d) subsection (3) does not apply to a disclosure to that country or to a body of that country; and
(e) 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 subsection 5(9) for when an application is finally determined.
336FA Disclosure of certain personal identifiers to selected individuals
(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
(b) the disclosure is made to an individual; and
(c) 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:
(i) identify, authenticate the identity of, or locate, the subject;
(ii) refer the officer to another person who might be able to help identify, authenticate the identity of, or locate, the subject; and
(d) 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
(e) the officer is satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help; and
(f) 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 and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
(2) 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.
336FB Disclosure of other relevant information to selected individuals
(1) An officer may disclose, to an individual, personal information about a person (the subject) if:
(a) the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and
(b) the personal information is disclosed together with the personal identifier; and
(c) paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to the personal information as well as the personal identifier.
(2) This section does not apply to personal information that is identifying information.
(3) 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.
336FC Disclosure of certain personal identifiers to the general public
(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
(b) 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
(c) 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 and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
(2) The Secretary or Australian Border Force Commissioner must not authorise disclosure of the personal identifier unless:
(a) 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
(b) either:
(i) 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
(ii) the Secretary or Australian Border Force Commissioner is satisfied that the subject cannot be found; and
(c) the Secretary or Australian Border Force Commissioner has considered the sensitivity of the personal identifier that is to be disclosed; and
(d) 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
(e) 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.
(3) 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.
(4) 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).
(5) An authority under paragraph (1)(c) is not a legislative instrument.
336FD Disclosure of other relevant information to the general public
(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:
(a) the person is disclosing a personal identifier of the subject and the disclosure is authorised by section 336FC; and
(b) the personal information is disclosed together with the personal identifier; and
(c) the disclosure of the personal information is for the purpose mentioned in paragraph 336FC(1)(b).
(2) This section does not apply to personal information that is identifying information.
Division 4—Modifying and impairing identifying information
336G Unauthorised modification of identifying information
A person commits an offence if:
(a) the person causes any unauthorised modification of identifying information; and
(b) the person intends to cause the modification; and
(c) the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
336H Unauthorised impairment of identifying information
A person commits an offence if:
(a) the person causes any unauthorised impairment of:
(i) the reliability of identifying information; or
(ii) the security of the storage of identifying information; or
(iii) the operation of a system by which identifying information is stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
336J Meanings of unauthorised modification and unauthorised impairment etc.
(1) In this Part:
(a) modification of identifying information; or
(b) impairment of the reliability of identifying information; or
(c) impairment of the security of the storage of identifying information; or
(d) 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.
(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) 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.
(4) For the purposes of subsection (1), if:
(a) a person causes any modification or impairment of a kind mentioned in that subsection; and
(b) 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.
Division 5—Destroying identifying information
336K Destroying identifying information
(1) A person commits an offence if:
(a) the person is the responsible person for identifying information; and
(b) 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 section 24 of the Archives Act 1983 (particularly paragraphs 24(2)(b) and (c)) on the obligation to keep the identifying information.
(2) This section does not apply if the identifying information is:
(a) a personal identifier that is any of the following:
(i) a measurement of a person’s height and weight;
(ii) a photograph or other image of a person’s face and shoulders;
(iii) a person’s signature; or
(b) 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:
(a) if the identifying information is stored on a database—the person who has day‑to‑day control of the database; or
(b) 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:
(a) in the case of identifying information that is a personal identifier—it is physically destroyed; and
(b) in any other case—any means of identifying it with the person to whom it relates is destroyed.
336L Identifying information that may be indefinitely retained
(1) Identifying information may be indefinitely retained if the non‑citizen to whom it relates:
(a) is, or has ever been, in immigration detention; or
(b) has ever had an application for a visa refused, or has ever had a visa cancelled; or
(c) has ever:
(i) entered Australia on a temporary visa; and
(ii) since its expiry, remained in Australia as an unlawful non‑citizen; or
(d) has ever been convicted of an offence against this Act or the regulations; or
(e) has ever been subject to action taken under this Act or the regulations for the purpose of:
(i) deporting the non‑citizen; or
(ii) removing the non‑citizen from Australia; or
(f) is a person in respect of whom the Minister has issued a conclusive certificate under subsection (4).
(2) 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).
(3) 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.
(4) The Minister may issue a conclusive certificate in respect of a non‑citizen if the Minister is satisfied that:
(a) the non‑citizen is a threat to the security of the Commonwealth or of a State or Territory; or
(b) it is in the public interest to do so.
(5) The power under subsection (4) may only be exercised by the Minister personally.
Part 5—Review of Part 5‑reviewable decisions
Division 1—Interpretation
336M Simplified outline of this Part
This Part provides for the review of Part 5‑reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.
Part 5‑reviewable decisions relate to the grant or cancellation of visas in some circumstances. They do not include decisions relating to protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate.
Part 7‑reviewable decisions (which generally relate to protection visas) are reviewable in accordance with Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division.
Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:
(a) some decisions to cancel business visas;
(b) some decisions relating to migration agents;
(c) some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.
Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.
336N Scope of this Part
(1) This Part applies in relation to the review by the Tribunal of Part 5‑reviewable decisions (see section 338).
(2) The Tribunal’s powers in relation to Part 5‑reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.
337 Interpretation
In this Part:
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 Tribunal in relation to an application for review of a Part 5‑reviewable decision:
(a) a decision to affirm the Part 5‑reviewable decision;
(b) a decision to vary the Part 5‑reviewable decision;
(c) a decision under paragraph 349(2)(c) to remit a matter in relation to the Part 5‑reviewable decision for reconsideration;
(d) a decision to set the Part 5‑reviewable decision aside and substitute a new decision;
(e) a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.
member means a member of the Tribunal.
nominated has the same meaning as in the regulations.
officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975.
Part 5‑reviewable decision: see section 338.
Registrar means the Registrar of the Tribunal.
sponsored has the same meaning as in the regulations.
Note: “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).
Division 2—Part 5‑reviewable decisions
338 Definition of Part 5‑reviewable decision
(1) A decision is a Part 5‑reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a Part 7‑reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d) the decision is a fast track decision.
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa could be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non‑citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
(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 Part 5‑reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non‑citizen was in immigration clearance; or
(c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A) A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is a Part 5‑reviewable decision if the non‑citizen was in the migration zone when the decision was made.
(4) The following decisions are Part 5‑reviewable decisions:
(a) a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;
(b) 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.
(5) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and
(c) 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 Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) 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
(c) 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 Part 5‑reviewable decision if:
(a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and
(b) 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 section 93, as to the assessed score of an applicant for a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is a Part 5‑reviewable decision.
339 Conclusive certificates
The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) 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 Part 5‑reviewable decision (see subsections 338(1) and 348(2)).
Division 3—Part 5‑reviewable decisions: Tribunal review
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:
(a) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b) if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
(c) if the Part 5‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
(d) if the Part 5‑reviewable decision is 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 (2)(c).
(3) If the Part 5‑reviewable decision was 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.
(3A) If the Part 5‑reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
(4) If the Part 5‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:
(a) request the opportunity to appear before the Tribunal; and
(b) request the Tribunal to obtain oral evidence from a specified person or persons.
A request must be made in the approved form and must accompany the application for review.
(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
348 Tribunal to review Part 5‑reviewable decisions
(1) Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
349 Tribunal powers on review of Part 5‑reviewable decisions
(1) The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
350 Review of assessments made under section 93
(1) In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
(2) 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 Tribunal may have regard to are:
(a) 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
(b) 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 Tribunal about the assessment.
351 Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) 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.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) 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:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) 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.
(5) A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) 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.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) 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.
352 Tribunal to notify Secretary of application for review of Part 5‑reviewable decisions
(1) If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) 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.
(4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar 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.
Division 4—Part 5‑reviewable decisions: Tribunal powers
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
353B Guidance decisions
(1) The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Migration Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 5‑reviewable decision of a kind specified in the direction.
(2) In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.
(3) However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.
Division 5—Part 5‑reviewable decisions: conduct of review
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
358 Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Tribunal:
(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
(2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) 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
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) 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 362B(1F).
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) 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
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) 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
(b) that the applicant gave for the purpose of the application for review; or
(ba) 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
(c) that is non‑disclosable information.
(5) 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 362B(1F).
359B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
360A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
361 Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).
362 Certain bridging visa decisions—request to call witnesses
(1) This section applies to the review of a decision covered by subsection 338(4) if:
(a) the applicant, in a request in the approved form that accompanied the application, requested the Tribunal to:
(i) give the applicant the opportunity to appear before it; or
(ii) obtain oral evidence from a specified person or persons; and
(b) the applicant has been invited to appear before the Tribunal in relation to the decision under review.
(2) If this section applies, the Tribunal:
(a) must have regard to the applicant’s request; but
(b) is not required to obtain evidence (oral or otherwise) from a person named in the applicant’s request.
(3) To avoid doubt, nothing in this Division requires the Tribunal to adjourn the review or to delay making a decision so that:
(a) the applicant may give evidence (oral or otherwise); or
(b) the Tribunal may obtain evidence (oral or otherwise) from any other person.
362A Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(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.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
362C Failure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1) This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a) a decision to dismiss an application under paragraph 362B(1A)(b);
(b) a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph.
Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A.
Written statement of decision
(2) If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i) sets out the findings on any material questions of fact; and
(ii) refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non‑appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4) The Tribunal has no power to vary or revoke a non‑appearance 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 362B(1D)).
Notice to applicant
(5) The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).
Notice to Secretary
(7) A copy of the written statement made under subsection (2) must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379B.
Validity etc. not affected by procedural irregularities
(8) The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:
(a) a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5), (6) or (7).
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c) subject to section 378, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2) The Tribunal may combine the reviews of 2 or more Part 5‑reviewable decisions made in respect of the same person.
(3) Subject to subsection (4), the Tribunal may, for the purposes of a review:
(a) summon a person to appear before the Tribunal to give evidence;
(b) summon a person to produce to the Tribunal the documents or things referred to in the summons;
(c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.
(4) The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
364 Tribunal’s power to take evidence
(1) The power (the evidence power) of the Tribunal under paragraph 363(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:
(a) a member conducting the review; or
(b) another person (whether or not a member) authorised in writing by that member.
(2) The evidence power may be exercised:
(a) inside or outside Australia; and
(b) subject to any limitations or requirements specified by the Tribunal.
(3) If a person other than a member conducting the review has the evidence power:
(a) the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 363(1) and paragraphs 363(3)(c) and (d); and
(b) this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and
(c) the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and
(d) for the purposes of section 360, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.
365 Review to be in public
(1) Subject to this section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public.
(2) Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private.
(3) If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private.
(4) Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given.
366 Oral evidence by telephone etc.
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
(2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.
366A Applicant may be assisted by another person while appearing before Tribunal
(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.
(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
366B Other persons not to be assisted or represented while appearing before Tribunal
(1) A person, other than the applicant, is not entitled, while appearing before the Tribunal, to:
(a) have another person present to assist him or her; or
(b) be represented by another person.
(2) This section does not affect the entitlement of the person to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
366C Interpreters
(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
366D Examination and cross‑examination not permitted
A person is not entitled to examine or cross‑examine any person appearing before the Tribunal to give evidence.
367 Certain bridging visa decisions—to be made within prescribed period
(1) Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.
(2) The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
Division 6—Part 5‑reviewable decisions: Tribunal decisions
368 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(3) After the Tribunal makes the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by:
(a) a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or
(b) a failure to comply with subsection (3).
368A Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
368D Tribunal’s decisions given orally
How and when oral decisions are taken to have been made
(1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
Statement in relation to oral decision
(2) If a decision on a review is given orally, the Tribunal must:
(a) make an oral statement that:
(i) describes the decision of the Tribunal on the review; and
(ii) describes the reasons for the decision; and
(iii) describes the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) identifies the day and time the decision is given orally; or
(b) make a written statement that:
(i) sets out the decision of the Tribunal on the review; and
(ii) sets out the reasons for the decision; and
(iii) sets out the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) records the day and time the decision is given orally.
(3) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.
Written statement to be provided on request of applicant
(4) If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the applicant by one of the methods specified in section 379A; and
(ii) to the Secretary by one of the methods specified in section 379B.
Written statement to be provided on request of Minister
(5) If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the Secretary by one of the methods specified in section 379B; and
(ii) to the applicant by one of the methods specified in section 379A.
Return of documents etc.
(6) After the Tribunal makes a statement under subsection (2), the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(7) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or
(b) a failure to comply with subsection (4), (5) or (6).
Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
Division 7—Part 5‑reviewable decisions: offences
370 Failure to comply with summons
(1) A person commits an offence if:
(a) the person is given a summons under section 363; and
(b) the person fails to comply with the summons.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) Subsection (1) does not apply if complying with the summons might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
371 Refusal to be sworn or to answer questions
Oath or affirmation
(1) A person commits an offence if:
(a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and
(b) the person has been required under section 363 either to take an oath or to make an affirmation; and
(c) the person fails to comply with the requirement.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Questions
(2) A person commits an offence if:
(a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and
(b) the Tribunal has required the person to answer a question for the purposes of the proceeding; and
(c) the person fails to answer the question.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Subsection (2) does not apply if answering the question might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Division 8—Part 5‑reviewable decisions: miscellaneous
375 Restrictions on disclosure of certain information etc.
In spite of anything else in this Act, the Secretary shall not give to the Tribunal 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:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, 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
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
376 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i) 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
(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or
(b) 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.
(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal 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 Tribunal.
378 Tribunal may restrict publication of certain matters
(1) Where the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
(a) any evidence given before the Tribunal;
(b) any information given to the Tribunal; or
(c) the contents of any document produced to the Tribunal;
should not be published, or should not be published except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
(2) Where the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its obligations under section 368; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
(3) A person shall not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.
Penalty: Imprisonment for 2 years.
Division 8A—Part 5‑reviewable decisions: giving and receiving documents
379AA Giving documents by Tribunal where no requirement to do so by section 379A or 379B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 379A or 379B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Tribunal 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 Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.
(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) 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.
(2A) 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.
(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal 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 Tribunal 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):
(a) who is at least 18 years of age; and
(b) who a member or an officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) 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 Tribunal 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.
(1B) 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
(2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.
Transmission by fax, email or other electronic means
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) 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 member or officer.
Documents given to a carer
(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
379B Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to the Secretary; and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.
Dispatch by post or by other means
(3) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by post or by other means; and
(c) to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched.
Transmission by fax, email or other electronic means
(4) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.
379C When a person other than the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal 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
(2) If the Tribunal 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
(3) If the Tribunal 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
(4) If the Tribunal 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:
(a) 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
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) If the Tribunal 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
(7) If:
(a) the Tribunal 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
(b) 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 Tribunal 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.
379D When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 379B (including in a case covered by section 379AA).
Giving by hand
(2) If the Tribunal gives a document to the Secretary by the method in subsection 379B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the Secretary by the method in subsection 379B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:
(a) 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
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(4) If the Tribunal gives a document to the Secretary by the method in subsection 379B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.
379EA Giving documents by Tribunal—combined applications
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 Tribunal 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.
379F Giving documents etc. to the Tribunal
If, in relation to the review of a Part 5‑reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:
(a) by giving the document or thing to an officer of the Tribunal; or
(b) by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or
(c) if the regulations set out a method for doing so—by that method.
379G Authorised recipient
(1) If:
(a) a person (the applicant) applies for review of a Part 5‑reviewable decision; and
(b) the applicant gives the Tribunal 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 Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal 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.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a Part 5‑reviewable decision where the application is not properly made under section 347; and
(b) 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 that section).
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) 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.
(3A) 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.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Part 7—Review of Part 7‑reviewable decisions
Division 1—Interpretation
408 Simplified outline of this Part
This Part provides for the review of Part 7‑reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.
Part 7‑reviewable decisions relate to the grant or cancellation of protection visas in some circumstances. They do not include decisions in relation to which the Minister has given a conclusive certificate.
Part 5‑reviewable decisions (which relate to the grant or cancellation of visas other than protection visas in some circumstances) are reviewable in accordance with Part 5 by the Administrative Appeals Tribunal in its Migration and Refugee Division.
Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:
(a) some decisions to cancel business visas;
(b) some decisions relating to migration agents;
(c) some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.
Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.
409 Scope of this Part
(1) This Part applies in relation to the review by the Tribunal of Part 7‑reviewable decisions (see section 411).
(2) The Tribunal’s powers in relation to Part 7‑reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.
410 Interpretation
In this Part:
decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 7‑reviewable decision:
(a) a decision to affirm the Part 7‑reviewable decision;
(b) a decision to vary the Part 7‑reviewable decision;
(c) a decision under paragraph 415(2)(c) to remit a matter in relation to the Part 7‑reviewable decision for reconsideration;
(d) a decision to set the Part 7‑reviewable decision aside and substitute a new decision;
(e) a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application.
member means a member of the Tribunal.
officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975.
Part 7‑reviewable decision: see section 411.
Registrar means the Registrar of the Tribunal.
Note: “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).
Division 2—Part 7‑reviewable decisions
411 Definition of Part 7‑reviewable decision
(1) Subject to subsection (2), the following decisions are Part 7‑reviewable decisions:
(a) 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);
(b) 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);
(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i) subsection 5H(2), or 36(1B) or (1C); or
(iii) paragraph 36(2C)(a) or (b);
(d) a decision to cancel a protection visa, other than a decision that was made because of:
(i) 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 (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iii) paragraph 36(2C)(a) or (b).
(2) The following decisions are not Part 7‑reviewable decisions:
(aa) any decision to cancel a protection visa that is made personally by the Minister;
(a) decisions made in relation to a non‑citizen who is not physically present in the migration zone when the decision is made;
(b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3);
(c) fast track decisions.
(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) it would be contrary to the national interest for the decision to be reviewed.
412 Application for review of Part 7‑reviewable decisions
(1) An application for review of a Part 7‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non‑citizen who is the subject of the primary decision.
(3) 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.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
414 Tribunal to review Part 7‑reviewable decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
415 Tribunal powers on review of Part 7‑reviewable decisions
(1) The Tribunal may, for the purposes of the review of a Part 7‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
416 Multiple review applications—consideration of information
Scope
(1) This section applies if:
(a) a non‑citizen has made an application (the earlier application) to a review body for review of a decision under this Part; and
(b) the earlier application has been determined by a review body; and
(c) the non‑citizen makes a further application, to the Tribunal, for review of a Part 7‑reviewable decision.
Review body not required to consider earlier information
(2) The Tribunal, in considering the further application:
(a) is not required to consider any information considered in the earlier application; and
(b) may have regard to, and take to be correct, any decision that a review body has made about or because of that information.
(3) In this section:
review body means:
(a) the former Refugee Review Tribunal; or
(b) the Tribunal.
Note: The Refugee Review Tribunal was abolished from 1 July 2015, and its functions transferred to the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”).
417 Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) In exercising the power under subsection (1) on or after 1 September 1994, 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.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) 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.
(5) A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) 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.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) 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.
418 Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions
(1) If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar 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.
Division 3—Part 7‑reviewable decisions: Tribunal powers
420 Tribunal’s way of operating
The Tribunal, in reviewing a Part 7‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
420B Guidance decisions
(1) The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Refugee Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 7‑reviewable decision of a kind specified in the direction.
(2) In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.
(3) However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.
Division 4—Part 7‑reviewable decisions: conduct of review
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
423 Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Registrar:
(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.
423A How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of an RRT‑reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a) raises a claim that was not raised in the application before the primary decision was made; or
(b) presents evidence in the application that was not presented in the application before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal 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.
424 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) 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
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) 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 426A(1F).
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) 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
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) 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
(b) that the applicant gave for the purpose of the application for review; or
(ba) 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
(c) that is non‑disclosable information.
(4) 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 426A(1F).
424B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
424C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 424 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
425A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
426 Applicant may request Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1) This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a) a decision to dismiss an application under paragraph 426A(1A)(b);
(b) a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.
Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.
Written statement of decision
(2) If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i) sets out the findings on any material questions of fact; and
(ii) refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non‑appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4) The Tribunal has no power to vary or revoke a non‑appearance 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 426A(1D)).
Notice to applicant
(5) The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Notice to Secretary
(7) A copy of the written statement made under subsection (2) must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
Validity etc. not affected by procedural irregularities
(8) The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:
(a) a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5), (6) or (7).
427 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2) The Tribunal must combine the reviews of 2 or more Part 7‑reviewable decisions made in respect of the same non‑citizen.
(3) Subject to subsection (4), the Tribunal in relation to a review may:
(a) summon a person to appear before the Tribunal to give evidence; and
(b) summon a person to produce to the Tribunal the documents or things referred to in the summons; and
(c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and
(d) administer an oath or affirmation to a person so appearing.
(4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
(6) A person appearing before the Tribunal to give evidence is not entitled:
(a) to be represented before the Tribunal by any other person; or
(b) to examine or cross‑examine any other person appearing before the Tribunal to give evidence.
(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
428 Tribunal’s power to take evidence
(1) The power (the evidence power) of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:
(a) a member conducting the review; or
(b) another person (whether or not a member) authorised in writing by that member.
(2) The evidence power may be exercised:
(a) inside or outside Australia; and
(b) subject to any limitations or requirements specified by the Tribunal.
(3) If a person other than a member conducting the review has the evidence power:
(a) the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 427(1) and paragraphs 427(3)(c) and (d); and
(b) this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and
(c) the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and
(d) for the purposes of section 425, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.
429 Review to be in private
The hearing of an application for review by the Tribunal must be in private.
429A Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
Division 5—Part 7‑reviewable decisions: Tribunal decisions
430 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Note: Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 430D.
(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(3) After the Tribunal makes the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by:
(a) a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or
(b) a failure to comply with subsection (3).
430A Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
430D Tribunal’s decision given orally
How and when oral decisions are taken to have been made
(1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
Statement in relation to oral decision
(2) If the Tribunal makes an oral decision on a review, the Tribunal must:
(a) make an oral statement that:
(i) describes the decision of the Tribunal on the review; and
(ii) describes the reasons for the decision; and
(iii) describes the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) identifies the day and time the decision is given orally; or
(b) make a written statement that:
(i) sets out the decision of the Tribunal on the review; and
(ii) sets out the reasons for the decision; and
(iii) sets out the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) records the day and time the decision is given orally.
(3) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.
Written statement to be provided on request of applicant
(4) If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the oral statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the applicant by one of the methods specified in section 441A; and
(ii) to the Secretary by one of the methods specified in section 441B.
Written statement to be provided on request of Minister
(5) If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the Secretary by one of the methods specified in section 441B; and
(ii) to the applicant by one of the methods specified in section 441A.
Return of documents etc.
(6) After the Tribunal makes a statement under subsection (2), the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(7) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or
(b) a failure to comply with subsection (4), (5) or (6).
Note: Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
431 Identifying information not to be published
The Tribunal must not publish a statement made under subsection 430(1) which may identify an applicant or any relative or other dependant of an applicant.
Note: Section 66B of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to publish decisions and the reasons for them. However, section 66B does not authorise the publication of information if its disclosure would be prohibited or restricted by another enactment (such as this) conferring jurisdiction on the Tribunal.
Division 6—Part 7‑reviewable decisions: offences
432 Failure to comply with summons
(1) A person commits an offence if:
(a) the Tribunal gives a summons to the person under section 427; and
(b) the person fails to comply with the summons.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) Subsection (1) does not apply if complying with the summons might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
433 Refusal to be sworn or to answer questions
Oath or affirmation
(1) A person commits an offence if:
(a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and
(b) the person has been required under section 427 either to take an oath or to make an affirmation; and
(c) the person fails to comply with the requirement.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Questions
(2) A person commits an offence if:
(a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and
(b) the Tribunal has required the person to answer a question for the purposes of the proceeding; and
(c) the person fails to answer the question.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Subsection (2) does not apply if answering the question might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Division 7—Part 7‑reviewable decisions: miscellaneous
437 Restrictions on disclosure of certain information etc.
In spite of anything else in this Act, the Secretary must not give to the Tribunal 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:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, 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 for any reason specified in the certificate (other than a reason set out in paragraph 437(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; or
(b) 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.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
440 Tribunal may restrict publication or disclosure of certain matters
(1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
(a) any evidence given before the Tribunal; or
(b) any information given to the Tribunal; or
(c) the contents of any document produced to the Tribunal;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
(2) If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its obligations under section 430; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
(3) A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.
Penalty: Imprisonment for 2 years.
Division 7A—Review of Part 7‑reviewable decisions: giving and receiving documents
441AA Giving documents by Tribunal where no requirement to do so by section 441A or 441B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 441A or 441B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Tribunal 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 441EA.
Note 2: Under section 441G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.
(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) 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.
(2A) However, subsection (2) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
441A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal 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 Tribunal 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):
(a) who is at least 18 years of age; and
(b) who a member or an officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) 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 Tribunal 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 441C in respect of that method.
(1B) However, subsection (1A) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.
Transmission by fax, email or other electronic means
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) 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 member or officer.
Documents given to a carer
(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
441B Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to the Secretary; and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.
Dispatch by post or by other means
(3) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by post or by other means; and
(c) to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched.
Transmission by fax, email or other electronic means
(4) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.
441C When a person other than the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
Giving by hand
(2) If the Tribunal gives a document to a person by the method in subsection 441A(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
(3) If the Tribunal gives a document to a person by the method in subsection 441A(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
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) 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
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) If the Tribunal gives a document to a person by the method in subsection 441A(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
(7) If:
(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and
(b) 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 Tribunal 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.
441D When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 441B (including in a case covered by section 441AA).
Giving by hand
(2) If the Tribunal gives a document to the Secretary by the method in subsection 441B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the Secretary by the method in subsection 441B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:
(a) 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
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(4) If the Tribunal gives a document to the Secretary by the method in subsection 441B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.
441EA Giving documents by Tribunal—combined applications
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 Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
Note 2: Section 441G deals with giving documents to a person’s authorised recipient.
441F Giving documents etc. to the Tribunal
If, in relation to the review of a Part 7‑reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:
(a) by giving the document or thing to an officer of the Tribunal; or
(b) by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or
(c) if the regulations set out a method for doing so—by that method.
441G Authorised recipient
(1) If:
(a) a person (the applicant) applies for review of a Part 7‑reviewable decision; and
(b) the applicant gives the Tribunal 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 Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a Part 7‑reviewable decision where the application is not a valid application under section 412; and
(b) 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 a valid application under that section).
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) 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.
(3A) 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.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Part 7AA—Fast track review process in relation to certain protection visa decisions
Division 1—Introduction
473BA Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.
Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to the Immigration Assessment Authority.
Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.
The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers and other Reviewers are engaged under the Public Service Act 1999.
In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.
The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.
The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.
473BB Definitions
In this Part:
Division head means the head of the Migration and Refugee Division of the Tribunal.
fast track reviewable decision means:
(a) a fast track decision in relation to a fast track review applicant; or
(b) a fast track decision determined under section 473BC;
but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.
Note: Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1).
new information has the meaning given by subsection 473DC(1).
President means the President of the Tribunal.
referred applicant means an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under section 473CA.
Reviewer means a Reviewer engaged in accordance with Division 8, and includes the Senior Reviewer.
review material has the meaning given by section 473CB.
Senior Reviewer means the Senior Reviewer appointed under section 473JC.
Note: “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).
473BC Minister may determine that certain decisions are to be reviewed under this Part
The Minister may, by legislative instrument, determine that a specified fast track decision, or a specified class of fast track decisions, in relation to an excluded fast track review applicant should be reviewed under this Part.
Note 1: Excluded fast track review applicant and fast track decision are defined in subsection 5(1).
Note 2: If the Minister makes a determination, the fast track decision is a fast track reviewable decision (see paragraph (b) of the definition of fast track reviewable decision in section 473BB).
473BD Minister may issue conclusive certificate in relation to certain decisions
The Minister may issue a conclusive certificate in relation to a fast track decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) it would be contrary to the national interest for the decision to be reviewed.
Note: If the Minister issues a conclusive certificate, the fast track decision is not a fast track reviewable decision (see definition of fast track reviewable decision in section 473BB).
Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority
473CA Referral of fast track reviewable decisions
The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
473CB Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
473CC Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Division 3—Conduct of review
Subdivision A—Natural justice requirements
473DA Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Subdivision B—Review on the papers
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Subdivision C—Additional information
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
473DE Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non‑disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
473DF Invitation to give new information or comments in writing or at interview
(1) This section applies if a referred applicant is:
(a) invited under section 473DC to give new information in writing or at an interview; or
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3) The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant’s comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
Division 4—Decisions of Immigration Assessment Authority
473EA Immigration Assessment Authority’s decision and written statement
Written statement of decision
(1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(4) After the Immigration Assessment Authority makes the written statement, the Authority must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(5) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or
(b) a failure to comply with subsection (4).
473EB Notification of Immigration Assessment Authority’s decision
(1) The Immigration Assessment Authority must notify the referred applicant of a decision on a review by giving the referred applicant a copy of the written statement prepared under subsection 473EA(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 473HB.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 473HC.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
473EC Certain decisions of the Immigration Assessment Authority to be published
(1) Subject to subsection (2), and to any direction under section 473GD, the Immigration Assessment Authority may publish any statements prepared under subsection 473EA(1) that the President thinks are of particular interest.
(2) The Immigration Assessment Authority must not publish any statement which may identify a referred applicant or any relative or other dependent of a referred applicant.
Note: Section 5G may be relevant for determining relationships for the purposes of subsection (2).
Division 5—Exercise of powers and functions by Immigration Assessment Authority
473FA How Immigration Assessment Authority is to exercise its functions
(1) The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
Note: Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.
(2) The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.
473FB Practice directions
(1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Immigration Assessment Authority; and
(b) the conduct of reviews by the Authority.
(2) Without limiting subsection (1), the directions may:
(a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non‑compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.
(4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
473FC Guidance decisions
(1) The President may, in writing, direct that a decision (the guidance decision) of the Tribunal, the Immigration Assessment Authority or the former Refugee Review Tribunal specified in the direction is to be complied with by the Authority in reaching a decision on a review of a fast track reviewable decision of a kind specified in the direction.
(2) In reaching a decision on a review of a decision of that kind, the Immigration Assessment Authority must comply with the guidance decision unless the Authority is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.
(3) However, non‑compliance by the Immigration Assessment Authority with a guidance decision does not mean that the Authority’s decision on a review is an invalid decision.
Division 6—Disclosure of information
473GA Restrictions on disclosure of certain information etc.
(1) Despite anything else in this Act, the Secretary must not give to the Immigration Assessment Authority a document, or information, if the Minister certifies, under subsection (2), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
(2) The Minister may issue a written certificate for the purposes of subsection (1).
473GB Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure 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 473GA(1)(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; or
(b) 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.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
473GC Disclosure of confidential information
(1) This section applies to a person who is or has been:
(a) a Reviewer; or
(b) a person acting as a Reviewer; or
(c) a person mentioned in subsection 473JE(2) who is assisting the Immigration Assessment Authority; or
(d) a person providing interpreting services in connection with a review by the Authority.
(2) This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act.
(3) A person to whom this section applies must not:
(a) make a record of any information to which this section applies; or
(b) divulge or communicate to any person any information to which this section applies;
unless the record is made or the information is divulged or communicated:
(c) for the purposes of this Act; or
(d) for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act.
Penalty: Imprisonment for 2 years.
(4) Subsection (3) applies to the divulging or communication of information whether directly or indirectly.
(5) A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:
(a) a court; or
(b) a tribunal; or
(c) a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(d) a committee of a House, or the Houses, of the Parliament of the Commonwealth, of a State or of a Territory; or
(e) any other authority or person having power to require the production of documents or the answering of questions;
except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
(6) Nothing in this section affects a right that a person has under the Freedom of Information Act 1982.
(7) For the purposes of this section, a person who is providing interpreting services in connection with a review by the Immigration Assessment Authority is taken to be performing a function under this Act.
(8) In this section:
produce includes permit access to.
473GD Immigration Assessment Authority may restrict publication or disclosure of certain matters
(1) If the President is satisfied, in relation to a review, that it is in the public interest that:
(a) any information given to the Immigration Assessment Authority; or
(b) the contents of any document produced to the Authority;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the President may give a written direction accordingly.
(2) A direction under subsection (1):
(a) must be in writing; and
(b) must be notified in a way that the President considers appropriate.
(3) If the President has given a direction under subsection (1) in relation to the publication of any information or of the contents of a document, the direction does not:
(a) excuse the Immigration Assessment Authority from its obligations under section 473EA; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Authority.
(4) A person must not contravene a direction given under subsection (1) that is applicable to the person
Penalty: Imprisonment for 2 years.
Division 7—Giving and receiving review documents etc.
473HA Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Immigration Assessment Authority to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 473HB or 473HC; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Authority 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: Under section 473HG a referred applicant may give the Immigration Assessment Authority the name of an authorised recipient who is to receive documents on the referred applicant’s behalf.
(2) If a person is a minor, the Immigration Assessment Authority may give a document to an individual who is at least 18 years of age if the Authority reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) 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.
(3) If the Immigration Assessment Authority gives a document to an individual, as mentioned in subsection (2), the Authority is taken to have given the document to the minor. However, this does not prevent the Authority giving the minor a copy of the document.
473HB Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Immigration Assessment Authority to give a document to a person (the recipient); and
(b) state that the Authority must do so by one of the methods specified in this section;
the methods are as follows.
(2) If the recipient is a minor, the Immigration Assessment Authority may use the methods mentioned in subsections (5) and (6) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who the Authority reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) 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 Immigration Assessment Authority gives an individual a document by the method mentioned in subsection (5) or (6), the individual is taken to have received the document at the time specified in section 473HD in respect of that method.
Giving by hand
(3) One method consists of a Reviewer, a person authorised in writing by the Senior Reviewer, or a person mentioned in subsection 473JE(2), handing the document to the recipient.
Handing to a person at last residential or business address
(4) Another method consists of a Reviewer, a person authorised in writing by the Senior Reviewer, or a person mentioned in subsection 473JE(2), handing the document to another person who:
(a) is at the last residential or business address of the recipient provided to the Immigration Assessment Authority in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(5) Another method consists of a Reviewer or a person mentioned in subsection 473JE(2) dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service of the recipient provided to the Immigration Assessment Authority in connection with the review; or
(ii) the last residential or business address of the recipient provided to the Authority in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor provided to the Authority.
Transmission by fax, email or other electronic means
(6) Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, of the recipient provided to the Immigration Assessment Authority; or
(e) 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 provided to the Authority.
Documents given to a carer
(7) If the Immigration Assessment Authority gives a document to a carer of a minor, the Authority is taken to have given the document to the minor. However, this does not prevent the Authority giving the minor a copy of the document.
473HC Methods by which Immigration Assessment Authority gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Immigration Assessment Authority to give a document to the Secretary; and
(b) state that the Authority must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a Reviewer, a person authorised in writing by the Senior Reviewer or a person mentioned in subsection 473JE(2), handing the document to the Secretary or to an authorised officer.
Dispatch by post or by other means
(3) Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by post or by other means; and
(c) to an address, notified to the Immigration Assessment Authority in writing by the Secretary, to which such documents can be dispatched.
Transmission by fax, e‑mail or other electronic means
(4) Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to the last fax number, email address or other electronic address notified to the Authority in writing by the Secretary for the purpose.
473HD When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority
(1) This section applies if the Immigration Assessment Authority gives a document to a person other than the Secretary by one of the methods specified in section 473HB (including in a case covered by section 473HA).
Giving by hand
(2) If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(3) (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
(3) If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(4) (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
(4) If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(5) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document 7 working days (in the place of that address) after the date of the document.
Transmission by fax, email or other electronic means
(5) If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(6) (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.
(6) Subsection (5) applies despite sections 14, 14A and 14B of the Electronic Transactions Act 1999.
Document not given effectively
(7) If:
(a) the Immigration Assessment Authority purports to give a document to a person in accordance with a method specified in section 473HB (including in a case covered by section 473HA) but makes an error in doing so; and
(b) 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 Authority 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.
473HE When the Secretary is taken to have received a document from the Immigration Assessment Authority
(1) This section applies if the Immigration Assessment Authority gives a document to the Secretary by one of the methods specified in section 473HC (including in a case covered by section 473HA).
Giving by hand
(2) If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.
Dispatch by post or by other means
(3) If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document 7 working days (in the place of that address) after the date of the document.
Transmission by fax, email or other electronic means
(4) If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.
(5) Subsection (4) applies despite sections 14, 14A and 14B of the Electronic Transactions Act 1999.
473HF Giving documents etc. to the Immigration Assessment Authority
(1) If, in relation to the review of fast track reviewable decision, a person is required or permitted to give a document or thing to the Immigration Assessment Authority, the person must do so:
(a) by a method set out in directions under section 473FB; or
(b) if the regulations set out a method for doing so—by that method.
(2) Directions under section 473FB may make provision for a person to give a copy of a document, rather than the document itself, to the Immigration Assessment Authority.
473HG Authorised recipient
(1) If:
(a) a fast track reviewable decision in respect of a referred applicant is referred for review; and
(b) the referred applicant gives the Immigration Assessment Authority written notice of the name and address of another person (the authorised recipient) authorised by the referred applicant to receive documents in connection with the review;
the Authority must give the authorised recipient, instead of the referred applicant, any document that it would otherwise have given to the referred applicant.
Note: If the Immigration Assessment Authority gives a person a document by a method specified in section 473HB, the person is taken to have received the document at the time specified in section 473HD in respect of that method.
(2) If the Immigration Assessment Authority gives a document to the authorised recipient, the Authority is taken to have given the document to the referred applicant. However, this does not prevent the Authority giving the referred applicant a copy of the document.
(3) Subject to subsection (4), the referred applicant 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 referred applicant’s authorised recipient.
(4) In addition to the referred 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.
(5) This section does not apply to the Immigration Assessment Authority giving documents to, or communicating with, the referred applicant when the referred applicant is appearing at an interview with the Authority.
Division 8—The Immigration Assessment Authority
473JA The Immigration Assessment Authority
(1) The Immigration Assessment Authority is established within the Migration and Refugee Division of the Tribunal.
(2) The Immigration Assessment Authority consists of the following persons:
(a) the President;
(aa) the Division head;
(b) the Senior Reviewer and other Reviewers.
(3) The President, the Division head, the Senior Reviewer and the other Reviewers are to exercise the powers, and perform the functions, of the Immigration Assessment Authority under this Part.
473JB Administrative arrangements
(1) The President and the Division head are responsible for the overall operation and administration of the Immigration Assessment Authority and, for that purpose, either of them may issue directions or determine policies.
(1A) If a power or function is conferred on the President under this Part, the power may be exercised, or the function performed, by either the President or the Division head.
Example: The Division head may exercise the President’s power to make a direction under section 473FC (Guidance decisions).
(2) The Senior Reviewer is to manage the Immigration Assessment Authority subject to the directions of, and in accordance with policies determined by, the President or the Division head.
473JC Appointment of Senior Reviewer
(1) The President must, by written instrument, appoint an SES employee to be the Senior Reviewer.
(2) Before appointing a person as the Senior Reviewer, the President must consult the Minister.
473JD Acting Senior Reviewer
The President may appoint a person to act as the Senior Reviewer:
(a) during a vacancy in the office of Senior Reviewer, whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods, when the Senior Reviewer is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office of Senior Reviewer.
473JE Staff
(1) The Senior Reviewer and the other Reviewers are to be persons engaged under the Public Service Act 1999.
(2) The Registrar must make available officers of the Tribunal (within the meaning of the Administrative Appeals Tribunal Act 1975) to assist the Immigration Assessment Authority in the performance of its administrative functions.
473JF Delegation
(1) The President may delegate, in writing, all or any of the President’s powers or functions under this Part to the Senior Reviewer.
(2) In exercising a power under a delegation, the Senior Reviewer must comply with any written directions of the President.
Part 8—Judicial review
Division 1—Privative clause
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) 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) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) 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;
(j) a failure or refusal to make a decision.
(4) 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:
Decisions that are not privative clause decisions |
Item | Provision | Subject matter of provision |
1 | section 213 | Liability for the costs of removal or deportation |
2 | section 217 | Conveyance of removees |
3 | section 218 | Conveyance of deportees etc. |
4 | section 222 | Orders restraining non‑citizens from disposing of property |
5 | section 223 | Valuables of detained non‑citizens |
6 | section 224 | Dealing with seized valuables |
7 | section 252 | Searches of persons |
8 | section 259 | Detention of vessels for search |
9 | section 260 | Detention of vessels/dealing with detained vessels |
10 | section 261 | Disposal of certain vessels |
11 | Division 14 of Part 2 | Recovery of costs |
12 | section 269 | Taking of securities |
13 | section 272 | Migrant centres |
14 | section 273 | Detention centres |
15 | Part 3 | Migration agents registration scheme |
16 | Part 4 | Court orders about reparation |
23 | Division 7 of Part 5 | Part‑5 reviewable decisions: offences |
28 | Division 6 of Part 7 | Part‑7 reviewable decisions: offences |
31 | regulation 5.35 | Medical treatment of persons in detention |
(5) 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, is not a privative clause decision.
(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) 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 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Division 2—Jurisdiction and procedure of courts
474A Definition of AAT Act migration decision
For the purposes of this Act, a decision under a provision of the Administrative Appeals Tribunal Act 1975 set out in the following table is an AAT Act migration decision, to the extent that the decision is made in relation to any of the following:
(a) a review of a particular Part‑5 reviewable decision or Part‑7 reviewable decision;
(b) a function of the Tribunal in relation to the exercise of its jurisdiction to review Part 5‑reviewable decisions or Part 7‑reviewable decisions;
(c) a Tribunal member in the Migration and Refugee Division of the Tribunal.
AAT Act migration decisions |
Item | Provision of the Administrative Appeals Tribunal Act 1975 | Subject matter of provision |
1 | section 6 | Appointment of members of the Tribunal |
2 | section 8 | Term of appointment |
3 | section 9 | Remuneration and allowances |
4 | section 10 | Acting appointments |
5 | section 10A | Delegation |
6 | section 11 | Outside employment |
7 | section 12 | Leave of absence |
8 | section 13 | Termination of appointment (not Judges) |
9 | section 14 | Disclosure of interests by members |
10 | section 17K | Division heads |
11 | section 17L | Deputy Division heads |
12 | section 18A | Arrangement of business |
13 | section 18B | President’s directions—arrangement of business |
14 | section 19A | President’s directions—constitution |
15 | section 19D | Reconstitution |
16 | section 24C | Appointment of Registrar |
17 | section 24N | Staff |
18 | section 24P | Functions of Registrar and staff |
19 | section 24PA | Officers of the Tribunal |
20 | section 42 | Resolving disagreements |
21 | section 64 | Registries |
Note: An AAT Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)).
475 This Division not to limit section 474
This Division is not to be taken to limit the scope or operation of section 474.
476 Jurisdiction of the Federal Circuit Court
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d) 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 Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period; or
(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
476A Limited jurisdiction of the Federal Court
(1) Despite any other law, including section 39B of the 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:
(a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c) 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
(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.
Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:
(a) a privative clause decision;
(b) a purported privative clause decision;
(c) an AAT Act migration decision.
In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.
The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non‑privative clause decisions.
(2) 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 section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or
(b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(4) Despite section 33 of the 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).
(5) In this section:
judgment has the same meaning as in the Federal Court of Australia Act 1976.
476B Remittal by the High Court
(1) 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 Court.
(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 Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.
(3) 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 section 44 of the Judiciary Act 1903.
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court 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 within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or
(d) 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).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
477A Time limits on applications to the Federal Court
(1) 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.
(2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
(a) 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
(b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) 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).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
478 Persons who may make application
An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or
(aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or
(b) in any other case—the person who is the subject of the decision; or
(c) in any case—a person prescribed by the regulations.
479 Parties to review
The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or
(aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or
(b) in any other case—the person who is the subject of the migration decision; or
(c) in any case—a person prescribed by the regulations.
480 Intervention by Attorney‑General
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A.
(2) If the Attorney‑General intervenes in such a proceeding, the Federal Circuit Court or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit.
(3) If the Attorney‑General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
481 Operation etc. of decision
The making of an application referred to in section 477 or 477A does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
482 Changing person holding, or performing the duties of, an office
If:
(a) a person has, in the performance of the duties of an office, made a migration decision; and
(b) 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:
(c) the person for the time being holding or performing the duties of that office; or
(d) 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.
484 Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court
(1) Only the High Court, the Federal Court and the Federal Circuit Court have jurisdiction in relation to migration decisions.
(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit Court, but to exclude other courts from jurisdiction in relation to migration decisions.
(3) To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.
(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.
Part 8A—Restrictions on court proceedings
486A Time limit on applications to the High Court for judicial review
(1) 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.
(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
(a) 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
(b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) 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).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
486AA Intervention by Attorney‑General
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).
(2) 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.
(3) If the Attorney‑General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
486AB Operation etc. of decision
The making of an application referred to in section 486A does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
486B Multiple parties in migration litigation
Application of section
(1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Circuit Court 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
(2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:
(a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and
(b) the consolidation is desirable for the efficient conduct of the proceedings.
(3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).
Other joint proceedings etc.
(4) The following are not permitted in or by a migration proceeding:
(a) representative or class actions;
(b) joinder of plaintiffs or applicants or addition of parties;
(c) 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
(5) This section has effect despite any other law, including in particular:
(a) Part IVA of the Federal Court of Australia Act 1976; and
(b) any Rules of Court.
(6) However, this section does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that this section does not apply.
Exceptions to general rules
(7) This section does not prevent the following persons from being involved in a migration proceeding:
(a) 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
(ii) all of those applicants and other persons are members of the same family as so defined;
(b) a person who becomes a party to the proceeding in performing the person’s statutory functions;
(c) the Attorney‑General of the Commonwealth or of a State or Territory;
(d) any other person prescribed in the regulations.
486C Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court
(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit Court or the Federal Court that raises an issue:
(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens; and
(b) 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).
(2) Those persons are:
(a) a party to a review mentioned in section 479; or
(b) the Attorney‑General of the Commonwealth or of a State or a Territory; or
(c) a person who commences or continues the proceeding in performing the person’s statutory functions; or
(d) any other person prescribed by the regulations.
(3) This section applies to proceedings within the Federal Circuit Court’s jurisdiction under section 476 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.
(3A) This section applies to proceedings transferred to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999 and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).
(4) 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
(5) This section has effect despite any other law.
(6) However, subsection (5) does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.
486D Disclosing other judicial review proceedings
(1) A person must not commence a proceeding in the Federal Circuit Court 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.
(2) 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.
(3) 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.
(4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
judicial review proceeding, in relation to a tribunal decision, means:
(a) a proceeding in the Federal Circuit Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c) 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:
(a) by the Tribunal under Part 5 or 7 or section 500; or
(b) by the Immigration Assessment Authority under Part 7AA.
Part 8B—Costs orders where proceedings have no reasonable prospect of success
486E Obligation where there is no reasonable prospect of success
(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a) the migration litigation has no reasonable prospect of success; and
(b) either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
486F Cost orders
(1) 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:
(a) 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;
(b) 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;
(c) where the person is a lawyer who has acted for the litigant in the migration litigation:
(i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;
(ii) 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.
(2) 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.
(3) An order under this section may be made:
(a) on the motion of the court; or
(b) on the application of a party to the migration litigation.
(4) The motion or application must be considered at the time the question of costs in the migration litigation is decided.
(5) 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.
486G Person must be given reasonable opportunity to argue against costs order
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.
486H Limited waiver of legal professional privilege
(1) If, in proceedings to determine whether an order under section 486F should be made:
(a) 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
(b) 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.
(2) However:
(a) 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
(b) the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances.
(3) 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.
(4) 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.
486I Lawyer’s certification
(1) 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.
(2) 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.
486J Part does not limit other powers to order costs against third parties
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.
486K Definitions
In this Part:
migration litigation means a court proceeding in relation to a migration decision.
Part 8C—Reports on persons in detention for more than 2 years
486L What is the detention reporting start time for a person?
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:
(a) 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
(b) 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).
486M What is a detention reporting time for a person?
For the purposes of this Part, a detention reporting time for a person is:
(a) the detention reporting start time for the person; or
(b) the end of each successive period of 6 months after that time at the end of which the person is in immigration detention.
486N Secretary’s obligation to report to Commonwealth Ombudsman
(1) The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given:
(a) 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
(b) otherwise—within 21 days after the detention reporting time.
(2) Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection.
(3) 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.
486O Commonwealth Ombudsman to give Minister assessment of detention arrangements
Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements
(1) As soon as practicable after the Commonwealth Ombudsman receives a report under section 486N, he or she is to give the Minister an assessment of the appropriateness of the arrangements for the person’s detention.
Assessment may include recommendations
(2) The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate.
(3) Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following:
(a) a recommendation for the continued detention of a person;
(b) 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);
(c) a recommendation that a person be released into the community on a visa;
(d) general recommendations relating to the Department’s handling of its detainee caseload.
(4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.
Assessment to include statement for tabling in Parliament
(5) 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
(6) 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.
486P Minister to table statement from Commonwealth Ombudsman
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.
486Q Application of Ombudsman Act 1976
(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.
(2) The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.
Part 8D—Civil penalties
Division 1—Obtaining a civil penalty order
486R Civil penalty orders
Application for order
(1) 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.
(2) The Minister must make the application within 6 years of the alleged contravention.
Eligible court may order person to pay pecuniary penalty
(3) 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
(5) The pecuniary penalty must not be more than:
(a) if the person is a body corporate—5 times the amount of the pecuniary penalty specified for the civil penalty provision; and
(b) otherwise—the amount of the pecuniary penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the eligible court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and
(e) 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
(f) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.
486S Additional rules relating to the sponsorship civil penalty provisions
(1) 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
(2) 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.
(3) 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
(4) If, when determining the application, it appears to the eligible court that:
(a) 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
(b) the amount remains unpaid after the time for payment; and
(c) 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.
(5) If the eligible court makes an order under subsection (4):
(a) 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
(b) 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.
486T Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to the Commonwealth.
(2) 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.
486U Conduct contravening more than one civil penalty provision
(1) 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.
(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
486V Multiple contraventions
(1) 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.
(2) 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.
486W Proceedings may be heard together
An eligible court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
486X Civil evidence and procedure rules for civil penalty orders
An eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
486Y Requirement for persons to assist in applications for civil penalty orders
(1) A person commits an offence if:
(a) the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Secretary can request a person to assist under subsection (1) only if:
(a) it appears to the Secretary that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(4) 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.
(5) 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.
(6) For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.
Division 2—Civil proceedings and criminal proceedings
486Z Civil proceedings after criminal proceedings
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.
486ZA Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the civil penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
486ZB Criminal proceedings after civil proceedings
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.
486ZC Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) 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
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) 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.
Division 3—Miscellaneous
486ZD Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) 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
(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.
486ZE Mistake of fact
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) 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.
(3) 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.
486ZF State of mind
(1) 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:
(a) the person’s intention; or
(b) the person’s knowledge; or
(c) the person’s recklessness; or
(d) the person’s negligence; or
(e) any other state of mind of the person.
(2) 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).
(3) Subsection (1) of this section does not affect the operation of section 486ZE (which is about mistake of fact).
486ZG Civil double jeopardy
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.
Part 8E—Investigation powers relating to certain offences and provisions
Division 1—Preliminary
487A Definitions
In this Part:
evidential material means:
(a) in relation to a sponsorship‑related offence or a work‑related offence:
(i) a thing with respect to which the offence has been committed or is reasonably suspected of having been committed; or
(ii) a thing that it is reasonably suspected will afford evidence as to the commission of the offence; or
(iii) a thing that is reasonably suspected of being intended to be used for the purpose of committing the offence; or
(b) in relation to a contravention of a sponsorship‑related provision or a work‑related provision:
(i) a thing with respect to which the provision has been contravened or is reasonably suspected of having been contravened; or
(ii) a thing that it is reasonably suspected will afford evidence as to the contravention of the provision; or
(iii) a thing that is reasonably suspected of being intended to be used for the purpose of contravening the provision.
issuing officer means:
(a) a magistrate; or
(b) a Judge of the Federal Circuit Court; or
(c) a Judge of the Federal Court.
Note: For conferral of powers on an issuing officer, see section 487ZH.
occupier, in relation to premises comprising a vehicle or vessel, 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) a structure, building, vehicle or vessel;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
related provision means:
(a) a sponsorship‑related offence; or
(b) a sponsorship‑related provision; or
(c) a work‑related offence; or
(d) a work‑related provision.
search powers has the meaning given by sections 487E, 487F and 487G.
search warrant means:
(a) a warrant issued by an issuing officer under section 487ZC; or
(b) a warrant signed by an issuing officer under section 487ZD.
sponsorship‑related offence means:
(a) an offence against Subdivision D of Division 12 of Part 2; or
(b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or
(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.
work‑related offence means:
(a) an offence against Subdivision C of Division 12 of Part 2; or
(b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or
(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against that Subdivision.
work‑related provision means a civil penalty provision in Subdivision C of Division 12 of Part 2.
Division 2—Requiring persons to give information or produce documents
487B Secretary or Australian Border Force Commissioner may require a person to give information or produce a document
(1) 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) a possible sponsorship‑related offence; or
(b) a possible contravention of a sponsorship‑related provision; or
(c) a possible work‑related offence; or
(d) 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
(2) The notice must:
(a) 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
(b) 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
(3) A person commits an offence if:
(a) the person is given a notice under subsection (1); and
(b) the person fails to comply with the notice.
Penalty: 30 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) 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).
487C Self‑incrimination
(1) 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.
(2) However, in the case of an individual:
(a) the information given or document produced; and
(b) giving the information or producing the document; and
(c) 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 section 137.1 or 137.2 of the Criminal Code that relates to Subdivision C or D of Division 12 of Part 2 of this Act); or
(e) 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).
Division 3—Search warrants
Subdivision A—Search powers
487D Authorised officer may enter premises by consent or under a search warrant
(1) If an authorised officer reasonably suspects that there may be evidential material on any premises, the authorised officer may:
(a) enter the premises; and
(b) exercise the search powers.
(2) However, an authorised officer is not authorised to enter the premises unless:
(a) 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
(b) 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).
487E Search powers of authorised officers
The following are the search powers that an authorised officer may exercise in relation to premises under section 487D:
(a) 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;
(b) if entry to the premises is under a search warrant:
(i) the power to search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant; and
(ii) the power to seize evidential material of that kind if the authorised officer finds it on the premises;
(c) the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b);
(d) 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);
(e) 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;
(f) the powers set out in subsections 487F(1) and (2) and section 487G.
487F Powers relating to electronic equipment
(1) The search powers include the power to operate electronic equipment on the premises if the authorised officer reasonably suspects that:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) 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:
(a) 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;
(b) 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;
(c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) 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.
(3) 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.
(4) An authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if:
(a) 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
(b) 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.
487G Seizing evidence of the contravention of related provisions etc.
(1) 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:
(a) in the course of searching for the kind of evidential material specified in the warrant, the authorised officer finds the thing; and
(b) the authorised officer reasonably believes that:
(i) a related provision has been contravened with respect to the thing; or
(ii) the thing is evidence of the contravention of a related provision; or
(iii) the thing is intended to be used for the purpose of contravening a related provision; and
(c) the authorised officer reasonably believes that it is necessary to seize the thing in order to prevent its concealment, loss or destruction.
487H Persons assisting authorised officers
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
(2) A person assisting the authorised officer:
(a) may enter the premises; and
(b) may exercise powers and perform functions and duties under this Division in relation to evidential material; and
(c) must do so in accordance with a direction given to the person assisting by the authorised officer.
(3) 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.
(4) 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.
(5) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.
487J Use of force in executing a search warrant
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
487K Authorised officer may ask questions and seek production of documents
Entry with consent
(1) 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:
(a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and
(b) 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
(2) If an authorised officer is authorised to enter premises by a search warrant, the authorised officer may require any person on the premises to:
(a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and
(b) produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) 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
487L Consent
(1) 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.
(2) A consent has no effect unless the consent is voluntary.
(3) 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.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) 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.
487M Announcement before entry under search warrant
(1) Before entering premises under a search warrant, an authorised officer must:
(a) announce that he or she is authorised to enter the premises; and
(b) 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
(c) give any person at the premises an opportunity to allow entry to the premises.
(2) 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:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the search warrant is not frustrated.
(3) If:
(a) an authorised officer does not comply with subsection (1) because of subsection (2); and
(b) 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.
487N Authorised officer to be in possession of search warrant
An authorised officer who is executing a search warrant must be in possession of:
(a) the search warrant issued by the issuing officer under section 487ZC, or a copy of the warrant as so issued; or
(b) the form of search warrant completed under subsection 487ZD(6), or a copy of the form as so completed.
487P Details of search warrant etc. to be given to occupier
(1) An authorised officer must comply with subsection (2) if:
(a) a search warrant is being executed in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.
(2) The authorised officer must, as soon as practicable:
(a) do one of the following:
(i) 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);
(ii) 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
(b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision D.
487Q Completing execution of search warrant after temporary cessation
(1) 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.
(2) The authorised officer, and persons assisting, may complete the execution of the search warrant if:
(a) the warrant is still in force; and
(b) the authorised officer and persons assisting are absent from the premises:
(i) for not more than 1 hour; or
(ii) 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
(iii) for a longer period if the occupier of the premises consents in writing.
Application for extension in emergency situation
(3) 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:
(a) there is an emergency situation; and
(b) 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.
(4) 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
(5) An issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if:
(a) an application is made under subsection (3); and
(b) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(c) the extension would not result in the period ending after the search warrant ceases to be in force.
487R Completing execution of search warrant stopped by court order
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:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is revoked or reversed.
487S Expert assistance to operate electronic equipment
(1) This section applies if an authorised officer enters premises under a search warrant.
Securing equipment
(2) The authorised officer may do whatever is necessary to secure any electronic equipment that is on premises if the authorised officer reasonably believes that:
(a) there is on the premises evidential material of the kind specified in the search warrant; and
(b) that evidential material may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) 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.
(3) The authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the authorised officer’s intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 24‑hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 487T.
Extensions
(5) 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.
(6) 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.
(7) 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.
(8) The 24‑hour period may be extended more than once.
487T Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in this Division:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) 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.
(3) 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.
(4) 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.
(5) 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
487U Occupier entitled to observe execution of search warrant
(1) 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.
(2) The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.
(3) This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.
487V Occupier to provide authorised officer with facilities and assistance
(1) The occupier of premises to which a search warrant relates, or another person who apparently represents the occupier, must provide:
(a) an authorised officer executing the warrant; and
(b) 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
(2) A person commits an offence if:
(a) the person is subject to subsection (1); and
(b) the person fails to comply with that subsection.
Penalty for contravention of this subsection: 30 penalty units.
Subdivision E—General provisions relating to seizure
487W Copies of seized things to be provided
(1) This section applies if:
(a) a search warrant is being executed in relation to premises; and
(b) an authorised officer seizes one or more of the following from the premises under this Division:
(i) a document, film, computer file or other thing that can be readily copied;
(ii) a storage device, the information in which can be readily copied.
(2) 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.
(3) The authorised officer must comply with such a request as soon as practicable after the seizure.
(4) 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.
487X Receipts for seized things
(1) An authorised officer must provide a receipt for a thing that is seized under this Division.
(2) One receipt may cover 2 or more things that are seized.
487Y Return of seized things
(1) 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:
(a) the reason for the thing’s seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60 days after the thing’s seizure ends.
Note: See subsections (2) and (3) for exceptions to this rule.
Exceptions
(2) Subsection (1):
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the Commonwealth; or
(ii) is the subject of a dispute as to ownership.
(3) The Secretary or Australian Border Force Commissioner is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:
(a) 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
(b) the thing may continue to be retained because of an order under section 487Z; or
(c) 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
(4) 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).
487Z Issuing officer may permit a seized thing to be retained
Application to retain seized thing
(1) 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:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of an issuing officer under this section.
(2) Before making the application, the Secretary or Australian Border Force Commissioner must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) 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
(3) 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:
(a) for the purposes of investigating whether:
(i) a sponsorship‑related offence has been committed; or
(ii) a sponsorship‑related provision has been contravened; or
(iii) a work‑related offence has been committed; or
(iv) a work‑related provision has been contravened; or
(b) to enable evidence of such an offence or contravention to be secured for the purposes of a prosecution or action.
(4) The period specified must not exceed 3 years.
487ZA Disposal of seized things
(1) The Secretary or Australian Border Force Commissioner may dispose of a thing seized under this Division if:
(a) the Secretary or Australian Border Force Commissioner has taken reasonable steps to return the thing to a person; and
(b) either:
(i) the Secretary or Australian Border Force Commissioner has been unable to locate the person; or
(ii) the person has refused to take possession of the thing.
(2) The Secretary or Australian Border Force Commissioner may dispose of the thing in any manner that he or she thinks appropriate.
487ZB Compensation for acquisition of property
(1) 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.
(2) 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.
(3) 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
487ZC Issue of search warrants
Application for search warrant
(1) An authorised officer may apply to an issuing officer for a search warrant under this section in relation to premises.
Issue of search warrant
(2) 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.
(3) 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
(4) The search warrant must:
(a) state:
(i) the sponsorship‑related offence or offences; or
(ii) the sponsorship‑related provision or provisions; or
(iii) the work‑related offence or offences; or
(iv) the work‑related provision or provisions;
to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this Subdivision; and
(d) specify the kind of evidential material that is to be searched for under the warrant; and
(e) 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
(f) name one or more authorised officers; and
(g) authorise the authorised officers named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers set out in this Division in relation to the premises; and
(h) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(i) specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.
487ZD Search warrants by telephone, fax etc.
Application for search warrant
(1) 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:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The issuing officer may require communication by voice to the extent that it is practicable in the circumstances.
(3) 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
(4) 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:
(a) after considering the terms of the information; and
(b) 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.
(5) After completing and signing the search warrant, the issuing officer must inform the authorised officer, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was signed.
Obligations on authorised officer
(6) The authorised officer must then do the following:
(a) complete a form of search warrant in the same terms as the warrant completed and signed by the issuing officer;
(b) state on the form the following:
(i) the name of the issuing officer;
(ii) the day on which, and the time at which, the search warrant was signed;
(c) send the following to the issuing officer:
(i) the form of search warrant completed by the authorised officer;
(ii) the information referred to in subsection (3), which must have been duly sworn or affirmed.
(7) The authorised officer must comply with paragraph (6)(c) by the end of the day after the earlier of the following:
(a) the day on which the search warrant ceases to be in force;
(b) the day on which the search warrant is executed.
Issuing officer to attach documents together
(8) The issuing officer must attach the documents provided under paragraph (6)(c) to the search warrant signed by the issuing officer.
487ZE Authority of search warrant
(1) 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).
(2) 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:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and
(b) the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence.
487ZF Offence relating to search warrants by telephone, fax etc.
An authorised officer must not:
(a) 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
(b) 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
(c) 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
(d) 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
487ZG Identity cards
(1) 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
(2) 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
(3) The identity card must:
(a) be in the form approved by the Secretary or Australian Border Force Commissioner; and
(b) contain a recent photograph of the authorised officer.
Offence
(4) A person commits an offence if:
(a) the person has been issued with an identity card under subsection (1); and
(b) the person ceases to be an authorised officer; and
(c) 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.
(5) An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) 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
487ZH Powers of issuing officers
Powers conferred personally
(1) A power conferred on an issuing officer by this Division is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The issuing officer need not accept the power conferred.
Protection and immunity
(3) 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:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
Part 9—Miscellaneous
Division 1—Bogus documents
487ZI Prohibition on, and forfeiture of, bogus documents
(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.
(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.
487ZJ Seizure of bogus documents
(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
(2) 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).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) 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:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.
487ZK Document condemned as forfeited
(1) If a document is seized under subsection 487ZJ(1), then:
(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
(b) 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:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) 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
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) 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.
(4) 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:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
(b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
487ZL Dealing with a document after it is condemned as forfeited
(1) If, under 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 the Minister under section 499.
(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:
(a) must give a direction under section 499 for the safe keeping of the document; and
(b) must authorise access to the document for the purposes of those proceedings.
Division 2—Other
487 Liability for identification tests
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:
(a) it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and
(b) 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.
488 Tampering with movements records
(1) A person must not:
(a) read; or
(b) examine; or
(c) reproduce by any means; or
(d) use; or
(e) 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.
(2) The Minister may:
(a) authorise an officer to perform for the purposes of one or more of the following:
(i) this Act;
(ii) the Family Law Act 1975;
(iii) 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;
(v) law enforcement;
(vi) the Education Services for Overseas Students Act 2000;
(vii) prescribed Commonwealth, State or Territory legislation;
one or more of the actions prohibited by subsection (1); or
(aa) authorise an officer, for the purpose of making a movement record available to, and for the use of:
(i) the person to whom the record relates; or
(ii) 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
(e) 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
(g) 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.
(3) 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.
(4) A person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not:
(a) delete, alter or add to any part of the movement records;
(b) alter any computer program connected with making, transferring or keeping movement records; or
(c) in any other way tamper with a notified data base.
Penalty: Imprisonment for 10 years.
488A Giving information to other relevant agencies
(1) For the purposes of:
(a) assisting with the regulation of providers; or
(b) 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.
(2) However, subsection (1) does not override section 488.
Note: Section 488 prohibits the disclosure etc. of movement records except in limited circumstances.
(3) In this section:
provider has the same meaning as in the Education Services for Overseas Students Act 2000.
488AA Things seized under Crimes Act search warrant and information about such things
(1) 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:
(a) to a person covered by subsection (4); and
(b) for a purpose mentioned in subsection (3).
(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:
(a) making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
(b) making a decision, or assisting in making a decision, to cancel a visa;
(c) making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
(d) 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.
(4) The following persons are covered by this subsection:
(a) the Minister;
(b) an officer, including the Secretary.
488B Authorisation to disclose information to an officer
(1) 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:
(a) 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
(b) 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.
(2) To avoid doubt, this section does not:
(a) require anyone to disclose information; or
(b) 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).
(3) 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.
489 Notified data bases
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.
490 Identification card to be deemed to continue to be in a form approved by the Minister
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.
492 Commencement of prosecutions
(1) 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.
(2) 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.
(3) A prosecution for an offence:
(a) 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.
(4) 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.
493 Conduct of directors, employees and agents
(1) 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:
(a) 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
(b) that the director, employee or agent had the state of mind.
(2) 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.
(3) 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:
(a) 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
(b) that the employee or agent had the state of mind.
(4) 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.
(5) Where:
(a) a person other than a body corporate is convicted of an offence; and
(b) 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.
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) 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.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
494 Jurisdiction of courts
(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.
(2) 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.
(3) 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.
494AA Bar on certain legal proceedings relating to unauthorised maritime arrivals
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to an unauthorised entry by an unauthorised maritime arrival;
(b) proceedings relating to the status of an unauthorised maritime arrival as an unlawful non‑citizen during any part of the ineligibility period;
(c) 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;
(d) proceedings relating to the exercise of powers under repealed section 198A;
(e) 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.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) 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:
(a) at an excised offshore place after the excision time for that place; or
(b) at any other place on or after the commencement of section 5AA.
494AB Bar on certain legal proceedings relating to transitory persons
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to the exercise of powers under section 198B;
(b) proceedings relating to the status of a transitory person as an unlawful non‑citizen during any part of the ineligibility period;
(c) 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;
(ca) 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;
(d) proceedings relating to the removal of a transitory person from Australia under this Act.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) 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.
494A Giving documents by Minister where no requirement to do so by section 494B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) 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.
(2) 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:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) 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.
(3) 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.
(4) 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.
494B Methods by which Minister gives documents to a person
Coverage of section
(1) 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
(b) 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 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):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) 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) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) 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
(2) 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
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) 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
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) 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.
When the Minister hands a document by way of an authorised officer
(6) 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
(7) 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.
494C When a person is taken to have received a document from the Minister
(1) 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
(2) 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
(3) 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
(4) 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:
(a) 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
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) 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.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) 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 Minister 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.
494D Authorised recipient
(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.
(2) 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.
(3) 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.
(3A) 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.
(5) The Minister need not comply with subsection (1) if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) 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).
495 Minister may approve forms
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.
495A Minister may arrange for use of computer programs to make decisions etc.
(1) 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:
(a) make a decision; or
(b) exercise any power, or comply with any obligation; or
(c) do anything else related to making a decision, exercising a power, or complying with an obligation.
(2) The Minister is taken to have:
(a) made a decision; or
(b) exercised a power, or complied with an obligation; or
(c) 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:
(a) Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);
(aa) section 257A;
(b) any provision of this Act or of the regulations that the Minister, by legislative instrument, determines to be part of the designated migration law.
495B Minister may substitute more favourable decisions for certain computer‑based decisions
(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) a certificate under paragraph 271(1)(l) relates to the computer program and to the initial decision; and
(b) the certificate states that the computer program was not functioning correctly; and
(c) the substituted decision could have been made under the same provision of the designated migration law as the initial decision; and
(d) the substituted decision is more favourable to the applicant.
(2) 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.
(3) Subsection (1) has effect despite:
(a) any law of the Commonwealth; or
(b) any rule of common law;
to the contrary effect.
496 Delegation
(1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.
(1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.
(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act.
(3) If an application for a visa that has a health criterion is made, the Minister may:
(a) delegate to a person the power to consider and decide whether that criterion is satisfied; and
(b) consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application.
(4) To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:
(a) Subdivision AB of Division 3 of Part 2 has effect accordingly; and
(b) 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.
(5) Subsection (1A) does not limit subsection 499(1).
497 Delegate not required to perform certain administrative tasks
(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.
(2) 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.
(3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
498 Exercise of powers under Act
(1) The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.
(2) Nothing in this section shall be taken to limit the operation of subsection 29(4).
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) 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.
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) 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.
(4) Subsection (1) does not limit subsection 496(1A).
500 Review of decision
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
(a) 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
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
(ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or
(c) 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:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
Note: Decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the Administrative Appeals Tribunal. However, some decisions of this kind are reviewable by that Tribunal, in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision in subsection 5(1).
(2) A person is not entitled to make an application under paragraph (1)(a) unless:
(a) the person is an Australian citizen; or
(b) the person is a lawful non‑citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.
(3) 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 under Part 5 or 7 if the decision had been made on another ground.
(4) The following decisions are not reviewable under Part 5 or 7:
(a) a decision under section 200 because of circumstances specified in section 201;
(b) a decision under section 501;
(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
(4A) The following decisions are not reviewable under this section, or under Part 5 or 7:
(a) 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 (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);
(c) a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.
(6) Where an application has been made to the Tribunal 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:
(a) the Tribunal (for example, an order under section 41 (stay orders) of the Administrative Appeals Tribunal Act 1975); or
(c) the Federal Court of Australia or a Judge of that Court under section 44A of that Act; or
(d) the Federal Circuit Court of Australia or a Judge of that Court under section 44A of that Act.
(6A) 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 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision.
(6B) 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, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
(6C) 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 Tribunal for a review of the decision must be accompanied by, or by a copy of:
(a) the document notifying the person of the decision in accordance with subsection 501G(1); and
(b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.
(6D) If an application is made to the Tribunal 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:
(a) the Registrar of the Tribunal must notify the Minister that the application has been made; and
(b) paragraph 29AC(1)(b) and section 37 of the Administrative Appeals Tribunal Act 1975 do not apply to the decision or the application.
(6F) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone;
then:
(c) the Minister must lodge with the Tribunal, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document that:
(i) is in the Minister’s possession or under the Minister’s control; and
(ii) was relevant to the making of the decision; and
(iii) contains non‑disclosable information; and
(d) the Tribunal 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 Tribunal 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.
(6G) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone;
the Tribunal must not:
(c) hold a hearing (other than a directions hearing); or
(d) make a decision under section 43 of the Administrative Appeals Tribunal Act 1975;
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.
(6H) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone;
the Tribunal 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 Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone;
the Tribunal 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 Tribunal 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 Tribunal under subsection 501G(2) or subsection (6F) of this section.
(6K) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone; and
(c) the Tribunal 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:
(d) the Tribunal may cause to be served on the Minister a notice in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, 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
(e) the Minister must comply with any such notice.
(6L) If:
(a) an application is made to the Tribunal 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
(b) the decision relates to a person in the migration zone; and
(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 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 Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
(7) In this section, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
(8) In this section:
business day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory; or
(d) a public holiday in the place concerned.
500A Refusal or cancellation of temporary safe haven visas
Refusal or cancellation of temporary safe haven visas
(1) 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:
(a) 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
(b) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(c) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia (see subsection (2)); or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) 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
(d) the person is a threat to national security; or
(e) the person’s presence in Australia would prejudice Australia’s international relations.
(2) For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) 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
(3) 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:
(a) the person has been sentenced to death (see subsection (4)); or
(b) the person has been sentenced to imprisonment for life (see subsection (4)); or
(c) the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)); or
(d) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(e) the person has been convicted of an offence against section 197A.
(4) 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:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.
(5) 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) a residential drug rehabilitation scheme; or
(b) 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
(6) The powers under subsections (1) and (3) may only be exercised by the Minister personally.
Minister to table decision
(7) 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:
(a) sets out the decision; and
(b) sets out the reasons for the decision.
(8) A statement under subsection (7) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) 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.
(9) A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) 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
(10) 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 notify the person of the decision. However, failure to do so does not affect the validity of the decision.
Natural justice and code of procedure not to apply to decision
(11) 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
(12) 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
(13) 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
(14) 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.
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) 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).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) 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.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) 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:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the Minister reasonably suspects:
(i) 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
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii) 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
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) 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
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) 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
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) 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 (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h) 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.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) 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
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Concurrent sentences
(7A) 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
(8) 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
(9) 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) a residential drug rehabilitation scheme; or
(b) 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.
(10) 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:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) 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
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Definitions
(12) 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.
501A Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) 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 Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) 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).
(4A) 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
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6) 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 under Part 5 or 7
(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)
(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.
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) A decision under subsection (2) is not reviewable under Part 5 or 7.
(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 Administrative Appeals Tribunal.
Note: For notification of decisions under this section, see section 501G.
501BA Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Action by Minister—natural justice does not apply
(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
(ii) paragraph 501(6)(e); and
(b) the Minister is satisfied that the cancellation is in the national interest.
(3) The rules of natural justice do not apply to a decision under subsection (2).
Minister’s exercise of power
(4) The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable under Part 5 or 7
(5) A decision under subsection (2) is not reviewable under Part 5 or 7.
Note: For notification of decisions under subsection (2), see section 501G.
501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) 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:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) 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.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) 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.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister personally.
(6) 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).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) 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.
(9) 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.
(10) The regulations may provide that, for the purposes of this section:
(a) a person; or
(b) 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.
(11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) 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.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) 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.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) 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.
(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test
The regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether:
(a) a person; or
(b) 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.
501E Refusal or cancellation of visa—prohibition on applying for other visas
(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:
(a) 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
(b) the decision was neither set aside nor revoked before the application time.
(1A) 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:
(a) the application for the visa was made on the person’s behalf; or
(b) the person knew about, or understood the nature of, the application for the visa due to:
(i) any mental impairment; or
(ii) the fact that the person was, at the time the application was made, a minor.
(1B) 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.
(2) Subsection (1) does not prevent a person, at the application time, from making an application for:
(a) a protection visa; or
(b) 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.
(3) 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.
(4) Subsection (1) does not prevent a person, at the application time, from making an application for a visa if:
(a) before the application time, the person was granted a visa of a kind referred to in subsection (2) or (3); and
(b) the person would, but for the operation of subsection (2) or (3), have been prevented from applying for that visa.
501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas
(1) 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.
(2) If:
(a) the person has made another visa application that has neither been granted nor refused; and
(b) 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.
(3) If:
(a) the person holds another visa; and
(b) 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.
(4) 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.
(5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.
Note: For notification of decisions under this section, see section 501G.
501G Refusal or cancellation of visa—notification of decision
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; or
(ba) 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:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non‑disclosable information) for the decision; and
(f) 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 Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) 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
(vi) sets out such additional information (if any) as is prescribed.
(2) If the decision referred to in subsection (1):
(a) was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and
(b) is reviewable by the Administrative Appeals Tribunal; and
(c) 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:
(d) is in the delegate’s possession or under the delegate’s control; and
(e) was relevant to the making of the decision; and
(f) does not contain non‑disclosable information.
(3) A notice under subsection (1) must be given in the prescribed manner.
(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.
501H Refusal or cancellation of visa—miscellaneous provisions
Additional powers
(1) 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
(2) 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.
501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas
If, under the Migration Reform (Transitional Provisions) Regulations, a person:
(a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or
(b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or
(c) 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.
501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision.
(2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.
(3) 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.
(4) The power under subsection (1) may only be exercised by the Minister personally.
(5) 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:
(a) sets out the decision of the Administrative Appeals Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) 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.
(6) A statement made under subsection (5) is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) 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.
(7) A statement under subsection (5) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(8) 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.
501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal
(1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:
(a) the person; or
(b) any relative or other dependant of the person.
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
(3) 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.
501L Disclosure of information to the Minister
(1) 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:
(a) is of a kind specified in the notice; and
(b) relates to a person, or to a person included in a class of persons, specified in the notice.
(2) 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:
(a) that the head of the agency has, or can reasonably acquire, the information; and
(b) the information is relevant for the purposes of considering whether:
(i) a person satisfies the Minister that the person passes the character test (as defined in section 501); or
(ii) the Minister reasonably suspects, or is satisfied, that a person does not pass the character test.
(3) 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.
(4) 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.
(5) 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:
(a) primarily relates to the protection of the privacy of individuals; and
(b) prohibits or regulates the use or disclosure of personal information.
Immunity from suit
(6) A person is not liable to:
(a) any proceedings for contravening a provision of a law referred to in subsection (5); or
(b) 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).
(7) In this section:
agency of a State or Territory includes the following:
(a) the Crown in right of a State or Territory;
(b) a Minister of a State or Territory;
(c) a State or Territory government department;
(d) 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;
(e) 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:
(i) the Crown in right of a State or Territory;
(ii) a person or body covered by paragraph (b) or (d);
(f) a State or Territory court;
(g) a State or Territory tribunal;
(h) a State or Territory parole board.
head of an agency means:
(a) if the agency is a State or Territory court—the registrar (however described) of the court; or
(b) otherwise—the principal officer (however described) of the agency.
502 Minister may decide in the national interest that certain persons are to be excluded persons
(1) If:
(a) the Minister, acting personally, intends to make a decision:
(i) under section 200 because of circumstances specified in section 201; or
(ii) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
in relation to a person; and
(b) 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.
(2) A decision under subsection (1) must be taken by the Minister personally.
(3) 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.
503 Exclusion of certain persons from Australia
(1) A person in relation to whom a decision has been made:
(a) under section 200 because of circumstances specified in section 201; or
(b) under section 501, 501A, 501B or 501BA; or
(c) 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.
(2) 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.
(3) Different periods may be prescribed under subsection (1) in relation to different situations.
(4) 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.
503A Protection of information supplied by law enforcement agencies or intelligence agencies
(1) 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:
(a) the officer must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) 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
(b) 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:
(i) the other person is the Minister or an authorised migration officer; and
(ii) 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).
(2) If:
(a) 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
(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
(c) 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
(d) 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.
(3) 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).
(3A) The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3).
(4) 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.
(4A) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):
(a) the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit Court; and
(b) the officer must not give the information in evidence before the Federal Court or the Federal Circuit Court.
The information may only be considered by the Federal Court or the Federal Circuit Court if a fresh disclosure of the information is made in accordance with:
(c) a declaration under subsection (3); or
(d) subsection 503B(6).
(5) 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).
(5A) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3):
(a) 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 Court; and
(b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Circuit Court.
The information may only be considered by the Federal Court or the Federal Circuit Court if a fresh disclosure of the information is made in accordance with:
(c) a declaration under subsection (3); or
(d) subsection 503B(6).
(6) This section has effect despite anything in:
(a) any other provision of this Act (other than sections 503B and 503C); and
(b) any law (whether written or unwritten) of a State or a Territory.
(7) To avoid doubt, if information is divulged or communicated:
(a) in accordance with paragraph (1)(a) or (b); or
(b) 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) 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.
(9) 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 70 of the Crimes Act 1914.
Note: A Minister is not a Commonwealth officer.
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:
(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
(c) 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.
503B Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non‑disclosure orders
Court may make non‑disclosure orders
(1) If:
(a) either:
(i) 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
(ii) 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 Court that relate to section 501, 501A, 501B, 501BA, 501C or 501CA; and
(c) no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings;
the Federal Court or the Federal Circuit Court may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit Court 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 Court, the information is not divulged or communicated to:
(d) the applicant in relation to the substantive proceedings; or
(e) the legal representative of the applicant in relation to the substantive proceedings; or
(f) any other member of the public.
(2) The Federal Court’s or Federal Circuit Court’s orders under subsection (1) include:
(a) 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
(b) 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
(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit Court, has access to a file or a record of the Federal Court or the Federal Circuit Court that contains the information.
(3) Subsection (2) does not limit subsection (1).
(4) 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 Court under this section are to be exercised by a single Judge of that Court.
Criteria for making non‑disclosure order
(5) In exercising its powers under subsection (1), the Federal Court or the Federal Circuit Court must have regard to all of the following matters:
(a) 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;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;
(d) in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;
(e) 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;
(f) Australia’s national security;
(g) the fact that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;
(h) the effectiveness of the investigations of official inquiries and Royal Commissions;
(i) the interests of the administration of justice;
(j) 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
(6) 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 Court for the purposes of enabling the Federal Court or the Federal Circuit Court to make a decision on the application.
(7) If information is disclosed to the Federal Court or the Federal Circuit Court under subsection (6):
(a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings; and
(b) the information may only be considered by the Federal Court or the Federal Circuit Court 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
(8) The Federal Court or the Federal Circuit Court may, by order, vary or revoke an order made by it under subsection (1) if both:
(a) the Minister; and
(b) the applicant in relation to the substantive proceedings;
consent to the variation or revocation.
Withdrawal of application for non‑disclosure order
(9) The Minister may withdraw an application under subsection (1) at any time.
Declarations under subsection 503A(3)
(10) 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 Court for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Circuit Court is considering whether to make an order under subsection (1).
(11) To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Circuit Court has made an order under subsection (1) of this section in relation to the information concerned.
Offence
(12) A person commits an offence if:
(a) an order is in force under subsection (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(13) This section has effect despite anything in:
(a) any other provision of this Act; or
(b) any other law of the Commonwealth.
Applicant
(14) For the purposes of this section, the table has effect:
Applicant |
Item | In the case of these proceedings... | the applicant is... |
1 | Proceedings within the Federal Circuit Court’s jurisdiction under section 476 of this Act, including proceedings arising from: (a) a remittal under section 44 of the Judiciary Act 1903; or (b) a transfer under section 32AB of the Federal Court of Australia Act 1976. | the person seeking the remedy to be granted in exercise of that jurisdiction. |
2 | Proceedings within the Federal Court’s jurisdiction under section 476A of this Act, including proceedings arising from a remittal under section 44 of the Judiciary Act 1903. | the person seeking the remedy to be granted in exercise of that jurisdiction. |
3 | Proceedings within the Federal Court’s appellate jurisdiction arising from proceedings (the original proceedings) mentioned in item 1 or 2. | the person who was the applicant for the original proceedings. |
4 | (a) proceedings by way of a referral of a question of law arising before the Administrative Appeals Tribunal; (b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a). | the person who applied to the Administrative Appeals Tribunal for a review of the decision concerned. |
Definitions
(15) In this section:
authorised migration officer has the same meaning as in section 503A.
engage in conduct means:
(a) do an act; or
(b) 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.
503C Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non‑disclosure orders
Notice of intention to apply for a permanent non‑disclosure order
(1) 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 Court written notice of the Minister’s intention to make the application.
(2) A notice under subsection (1) need not identify any of the attributes of the information.
Interim non‑disclosure order
(3) If:
(a) a notice is given under subsection (1); and
(b) 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 Court may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit Court 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 Court 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:
(c) the Federal Court’s or the Federal Circuit Court’s consideration of the subsection 503B(1) application; or
(d) 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 Court.
(4) The Federal Court’s or the Federal Circuit Court’s orders under subsection (3) include:
(a) 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
(b) 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
(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit Court, has access to a file or a record of the Federal Court or the Federal Circuit Court that contains the information.
(5) Subsection (4) does not limit subsection (3).
(6) 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 Court under this section are to be exercised by a single Judge of that Court.
Variation or revocation of non‑disclosure order
(7) The Federal Court or the Federal Circuit Court may, by order, vary or revoke an order made by it under subsection (3) if both:
(a) the Minister; and
(b) the applicant in relation to the substantive proceedings concerned;
consent to the variation or revocation.
Offence
(8) A person commits an offence if:
(a) an order is in force under subsection (3); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(9) This section has effect despite anything in:
(a) any other provision of this Act; or
(b) any other law of the Commonwealth.
Definition
(10) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
503D Details of gazetted agency to be treated as protected information
(1) 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.
(3) In this section:
gazetted agency has the same meaning as in section 503A.
504 Regulations
(1) 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:
(a) making provision for and in relation to:
(i) 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
(ii) the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;
(iii) the way, including the currency, in which fees are to be paid; or
(iv) the persons who may be paid fees on behalf of the Commonwealth;
(b) 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;
(c) making provision for or in relation to the furnishing or obtaining of information with respect to:
(i) 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
(ii) persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and
(iii) persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier;
(d) 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);
(e) making provision for and in relation to:
(i) the giving of documents to;
(ii) the lodging of documents with; or
(iii) the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;
(f) 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;
(g) 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;
(h) making provision for the remission, refund or waiver of charges under the Migration (Health Services) Charge Act 1991;
(i) enabling a person who is alleged to have contravened section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units;
(j) 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:
(i) in the case of a natural person—30 penalty units; and
(ii) in the case of a body corporate—100 penalty units; and
(jaa) 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
(ja) 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
(k) 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.
(3) 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).
(4) 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.
(5) 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:
(a) subsection (5) of this section;
(b) regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for:
(i) the enforcement of assurances of support; or
(ii) 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.
(6) In this section:
international air carrier means an air transport enterprise that operates an air service between Australia and a place outside Australia.
505 Regulations about visa criteria
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:
(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
506 Regulations about passenger cards
(1) Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people.
(2) 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.
(3) 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:
(a) the non‑citizen’s health;
(b) any criminal convictions in Australia or a foreign country of the non‑citizen;
(c) the purpose of the new arrival’s going to Australia;
(d) any unpaid debts to the Commonwealth of the non‑citizen;
(e) any removal or deportation from, or refusal of admission into, Australia or a foreign country of the non‑citizen.
506A Regulations may provide for infringement notices
(1) 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.
(2) 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.
507 Marital or relationship status
(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:
(a) regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify:
(i) the nature and incidents of the relationship between a person and another person; or
(ii) 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
(b) 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).
