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.
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 ART 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 ART 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 ART 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 ART member may order retention for further period
(1) The magistrate or ART member may order that the officer who made the application under section 268BP may retain the document if the magistrate or ART member is satisfied that it is necessary for the officer to retain it:
(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 ART member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1).
Note: Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 268CZD.
(2) The officer must give the magistrate or ART member an information on oath or affirmation that sets out the grounds for seeking the warrant.
268CE Magistrate or ART member may issue monitoring warrant
The magistrate or ART member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.
268CF Magistrate or ART member may require more information
(1) The magistrate or ART member may require an authorised officer or other person to give the magistrate or ART member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.
(2) The information may be given either orally or by affidavit.
(3) The magistrate or ART 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 ART 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 ART member under section 268CU.
(2) The authorised officer may apply to a magistrate or ART member for an order that the officer may retain the thing for a further period.
(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 ART member may order that thing be retained
(1) The magistrate or ART member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or ART member is satisfied that it is necessary for the officer to do so:
(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 ART member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.
(2) The magistrate or ART 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 ART member may grant warrant by telephone etc.
(1) Before issuing the warrant the magistrate or ART member must:
(a) consider the information prepared under subsection 268CZC(3); and
(b) receive any further information that the magistrate or ART member may require about the grounds on which the warrant is being sought.
(2) The magistrate or ART member may issue the warrant if the magistrate or ART 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 ART member issues a monitoring warrant under section 268CZD, the magistrate or ART member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or ART member would have issued if the application had been made under section 268CD.
(2) The magistrate or ART 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 ART member; and
(b) write on it the magistrate’s or ART 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 ART 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 ART member must:
(a) attach the monitoring warrant signed by the magistrate or ART 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 ART 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 ART 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 ART for the review of a decision under this Act, including a decision to make a deportation order.
Note: For offence against this Act, see subsection 5(1).
(5) For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:
(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) must be in the approved form; and
(b) must contain a photograph of the person concerned (if available); and
(c) must state, to the best of the Secretary’s or Australian Border Force Commissioner’s knowledge, the name and nationality of the person concerned; and
(d) 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:
Australian legal practitioner means a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory.
Note: For the meaning of lawyer, see subsection 5(1).
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.
client: see section 306C.
eligible: see section 278A.
eligible period: see section 278A.
immigration assistance: see section 276.
inactive migration agent: see section 306B.
legal practice means the provision of legal services regulated by a law of a State or Territory.
Migration Agents Registration Authority means the body mentioned in section 315.
Note: If a power or function is expressed to be given to the Migration Agents Registration Authority, it may only be exercised by the Minister, or by a delegate of the Minister under section 320 (see subsection 315(2)).
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 Division 3.
registration application means an application to be registered as a migration agent.
registration application fee means charge imposed by section 4 of the Migration Agents Registration Application Charge Act 1997 on a registration application.
registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.
related by employment: see section 278.
restricted: a practising certificate held by an Australian legal practitioner is restricted if:
(a) it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and
(b) such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.
Note: A practising certificate subject to a supervision condition of the kind mentioned in paragraph (a) is, however, taken to be unrestricted if the condition was imposed as a disciplinary measure as mentioned in paragraph (b) (see the definition of unrestricted in this section).
restricted legal practitioner means an Australian legal practitioner whose practising certificate is restricted (within the meaning of this Part).
unrestricted: a practising certificate held by an Australian legal practitioner is unrestricted if it is not restricted (within the meaning of this Part).
unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted (within the meaning of this Part).
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 the ART 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 the ART in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(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 the ART that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(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).
(2B) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a representation to the Minister to exercise the Minister’s power:
(i) under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to the other person); or
(ii) under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to the other person); or
(b) advising the other person about making a representation mentioned in paragraph (a).
Note: Sections 501C and 501CA provide for the revocation of decisions to refuse or cancel visas on character grounds.
(3) Despite subsections (1), (2), (2A) and (2B), 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.
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.
278A Eligibility for restricted legal practitioners
Eligibility—general
(1) A person who is a restricted legal practitioner is eligible, subject to this section.
(2) The person remains eligible until the earliest of the following times:
(a) the end of the eligible period, or of a longer period as extended under this section;
(b) when the person becomes an unrestricted legal practitioner.
Note 1: A person may be eligible whether or not the person is a registered migration agent at the time of becoming a restricted legal practitioner.
Note 2: While a restricted legal practitioner is eligible, the practitioner may become, or continue to be, a registered migration agent (see sections 289B and 302A). However, to be registered as a migration agent, an eligible restricted legal practitioner must also satisfy the requirements of section 289A, including completing a prescribed course and passing a prescribed exam.
(3) The eligible period is the period of 2 years after the person first held a restricted practising certificate.
Note: However, the eligible period for a person who was a restricted legal practitioner immediately before Division 8 commences (which is also when this section commences) is 2 years after that commencement: see section 333C.
Extension of eligible period
(4) An eligible person may apply to the Migration Agents Registration Authority for an extension of the eligible period for a period of up to 2 years:
(a) in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and
(b) if the application is made 3 months or more before the end of the eligible period.
Note: An eligible person may apply for an extension under this subsection whether or not the person is a registered migration agent at the time of the extension application.
(5) A person may make no more than one application for extension under subsection (4).
(6) On an application under subsection (4), the Authority must, by written notice given to the applicant no later than 28 days before the end of the eligible period:
(a) extend the eligible period by a stated period of no more than 2 years; or
(b) refuse to extend the eligible period.
(7) The Authority may extend the eligible period by a particular period only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) any circumstances determined under subsection (9).
(8) The notice of the decision must include any details determined under subsection (9) in relation to the decision.
(9) The Minister may, by legislative instrument, make a determination for the purposes of subsection (7) or (8).
Review by ART
(10) An application may be made to the ART for review of a decision by the Authority:
(a) under paragraph (6)(a), to extend the eligible period by a particular stated period; or
(b) under paragraph (6)(b), to refuse to extend the eligible period.
Note: The ART Act requires that reasonable steps be taken to notify people whose interests are affected by reviewable decisions of the Authority of their rights to seek review of the decision.
279 Part VIIC of the Crimes Act 1914 to apply to this Part
Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.
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 an Australian legal practitioner from giving immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(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) an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or
(b) a person from asking for or receiving a fee or other reward for the giving of immigration assistance by an Australian legal practitioner in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(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) Subject to subsection (2A), a person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.
Penalty: Imprisonment for 10 years.
(2) Subject to subsection (2A), a person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered migration agent.
Penalty: Imprisonment for 10 years.
(2A) This section does not prohibit:
(a) an Australian legal practitioner from asking for or receiving a fee or other reward for making immigration representations in connection with legal practice; or
(b) a person from asking for or receiving a fee or other reward for the making of immigration representations by an Australian legal practitioner in connection with legal practice.
(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 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; or
(g) on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person); or
(h) on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to that person).
(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 an Australian legal practitioner from advertising that the practitioner gives immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(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 an Australian legal practitioner gives immigration assistance in connection with legal practice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(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
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 the individual has been registered at some time within the period, immediately before making the application, that is prescribed for the purposes of this subsection.
Form of application
(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 ART Act or for judicial review of the decision;
then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.
Withdrawal of application
(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 Requirement to provide further information etc.
Scope
(1) This section applies in relation to an applicant who, on the day the registration application is taken to have been made, is not a registered migration agent.
Notice to provide further information etc.
(2) The Migration Agents Registration Authority may, by written notice given to the applicant, require the applicant to provide information in relation to the application, that is stated in the notice, by doing either of the following:
(a) providing to the Authority, within a period prescribed for the purposes of this paragraph (or that period as extended under subsection (5)) and stated in the notice:
(i) a statutory declaration; and
(ii) any other specified documents;
(b) appearing before the Authority, at a time and place stated in the notice (or at another time or place fixed under subsection (5)), and providing such information, with any specified documents, at such an appearance.
Refusal of application if applicant does not comply with notice
(3) The Authority may consider refusing the application if the applicant fails to comply with a requirement in the notice under subsection (2).
Note: If the Authority is considering refusing a registration application, it must invite the applicant to make a further submission in support of the application (see subsection 309(1)).
(4) An applicant must not be registered if:
(a) the applicant has failed to comply with a requirement of a notice under subsection (2):
(i) within the period to which paragraph (2)(a) applies; or
(ii) at the time to which paragraph (2)(b) applies; and
(b) the Authority has invited the applicant to make a further submission under subsection 309(1) in relation to the information required by the notice under subsection (2); and
(c) any of the following applies:
(i) the applicant fails to make such a further submission within a reasonable time after the invitation is given;
(ii) if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)—the applicant fails to appear before the Authority;
(iii) the Authority is not satisfied that the applicant has provided the information required by the notice under subsection (2) of this section after consideration of such a further submission, and (if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)) any information given by the applicant at such an appearance.
Other matters
(5) The Authority may, by written notice given to the applicant:
(a) upon a request of the applicant made within the period to which paragraph (2)(a) applies, extend the period; or
(b) upon a request of the applicant made before the time to which paragraph (2)(b) applies, fix a new time or place for the applicant to appear before the Authority.
(6) A notice under subsection (2) must include a statement explaining the consequences under this section of failing to comply with the requirements of the notice.
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.
289A Applicant must not be registered if academic and vocational requirements are not satisfied
(1) This section applies to an applicant:
(a) who has never been registered; or
(b) whose registration application is made after the end of a period, prescribed for the purposes of this paragraph, immediately after the end of the applicant’s most recent period of registration.
(2) The applicant must not be registered unless the Migration Agents Registration Authority is satisfied that the applicant has:
(a) completed a course prescribed for the purposes of this paragraph; and
(b) passed an examination, prescribed for the purposes of this paragraph, within a prescribed period before the date of the registration application.
289B Applications by Australian legal practitioners
(1) An applicant who is an unrestricted legal practitioner must not be registered.
(2) An applicant who is a restricted legal practitioner must not be registered unless the applicant is eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible (see section 302A).
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 must not be registered if continuing professional development requirements are not satisfied
(1) This section applies in relation to an applicant who has been registered at some time within the period, immediately before making the registration application, that is prescribed for the purposes of this subsection.
(2) The applicant must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the period prescribed for the purposes of this subsection, the prescribed requirements for continuing professional development of registered migration agents.
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 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) 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 ART for review of the decision: see section 306 of this Act. The ART Act requires that reasonable steps be taken to notify people whose interests are affected by the Authority’s decision of their rights to seek review of the decision.
299 Period of registration
(1) Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
(2) If the registration is suspended for a period, the period of the registration is extended by a period equal to the 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 ART or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.
Exception—cancellation
(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 ART or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
(b) there was a decision of the ART or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.
Period of continuation of registration
(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.
302A Cancellation of registration—Australian legal practitioners
(1) The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing the agent’s name from the Register, if the Authority is satisfied:
(a) that the agent is an unrestricted legal practitioner; or
(b) that the agent is a restricted legal practitioner who is not eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: An unrestricted legal practitioner, or a restricted legal practitioner other than an eligible restricted legal practitioner, cannot be registered as a migration agent (see section 289B).
(2) The Authority may cancel the registration of a registered migration agent under subsection (1) because of the status of the agent as an Australian legal practitioner only on the basis of a document authorised by a body authorised to grant practising certificates to Australian legal practitioners in the relevant State or Territory.
(3) The Authority must give a registered migration agent written notice of a decision to cancel the agent’s registration under subsection (1).
(4) The notice must set out the reason for the decision.
(5) 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.
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: 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
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.
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 ART
Subject to the ART Act, an application may be made to the ART for review of a decision by the Migration Agents Registration Authority made under this Division.
306AA Stay orders
If the ART or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.
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: For when an agent becomes inactive, 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
(ba) if a person ceases to be a registered migration agent because the Migration Agents Registration Authority cancels the person’s registration under section 302A, or because the person’s registration ends under section 333B:
(i) the person becomes an inactive migration agent at the time of the cessation of the registration; and
(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
Note 1: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or that of an agent who is a restricted legal practitioner, but is not eligible (see section 302A).
Note 2: Section 333B provides that the registration of an unrestricted legal practitioner as a migration agent ends when Division 8 commences (which is also when this paragraph commences).
(c) if the Migration Agents Registration Authority cancels a person’s registration under section 303:
(i) the person becomes an inactive migration agent at the time of the cancellation; and
(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:
(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 Definition of client
(1) A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.
(2) In addition:
(a) if a registered migration agent becomes an inactive migration agent, a client of the registered migration agent (while the agent was registered) remains a client of the inactive migration agent; and
(b) a person remains a client of a registered migration agent, or an inactive migration agent, even if the agent is deceased.
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
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 ART
Subject to the ART Act, an application may be made to the ART for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).
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 the agent paid the non‑commercial application charge in relation to the agent’s current period of registration—the agent begins to give immigration assistance otherwise than on a non‑commercial basis during that period;
(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 following terms used in paragraph (1)(ea) have the same meaning as in the Migration Agents Registration Application Charge Act 1997:
(a) begins (in relation to immigration assistance given otherwise than on a non‑commercial basis);
(b) non‑commercial application charge;
(c) non‑commercial basis (in relation to the basis on which immigration assistance is given).
(4) A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after the agent becomes:
(a) a restricted legal practitioner; or
(b) an unrestricted legal practitioner.
Penalty: 100 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.
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 ART 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 the ART 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.
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 Migration Agents Registration Authority—nature, powers and functions
(1) The Migration Agents Registration Authority is the body established within the Department to administer this Part.
(2) A power or function expressed under this Part to be given to the Migration Agents Registration Authority may only be exercised or performed by the Minister, or by a delegate of the Minister under section 320.
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
(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
(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.
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 Referral of conduct of certain migration agents to legal disciplinary authorities
Referral generally
(1) The Migration Agents Registration Authority may refer the conduct of a registered migration agent, or a former registered migration agent, who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory if:
(a) the legal practitioner was granted a practising certificate under the law of that State or Territory; and
(b) the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.
Conduct of registered migration agents
(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.
320 Minister may delegate powers and functions
(1) The Minister may delegate any of the powers or functions given to the Migration Agents Registration Authority under this Part to an APS employee in the Department.
Note: See section 315 (Migration Agents Registration Authority—nature, powers and functions).
(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.
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) the ART.
(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).
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.
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.
(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 Migration Institute of Australia Limited (ACN 003 409 390), or an officer or employee of that Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:
(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.
Note: The Institute was appointed as the Migration Agents Registration Authority by instrument dated 21 March 1998, under section 315 as then in force. That instrument was revoked on 30 June 2009.
Commonwealth etc.
(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 the ART.
(2) However, the Secretary may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the ART may use or disclose personal information disclosed under subsection (1).
332G Disclosure of personal information by the ART
Discretionary disclosure
(1) The ART may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.
(2) However, the ART 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 the ART that the agent has given immigration assistance to a person in respect of a review application made by the person, the ART must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.
Definitions
(5) In this section:
inactive migration agent has the meaning given by section 306B.
review application means an application for review by the ART of a decision to refuse to grant a person a visa.
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.
Division 8—Transitional arrangements for Australian legal practitioners
333 Definitions
In this Division:
amending Act means the Migration Amendment (Regulation of Migration Agents) Act 2020.
Division 8 commencement day means the day this Division commences.
Note: This Division was added by Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Act 2020.
333A Restrictions on giving immigration assistance and making immigration representations
(1) Despite the amendments of Division 2 made by Schedule 1 to the amending Act, that Division, as in force immediately before the Division 8 commencement day, continues to apply in relation to any conduct of a person occurring before that day.
(2) Subsection (1) also applies in relation to any conduct of a person occurring on or after the Division 8 commencement day if the conduct is a part or continuation of, or is connected to, conduct of the person occurring before that day.
333B Registered migration agents who were unrestricted legal practitioners immediately before the Division 8 commencement day
Scope
(1) This section applies in relation to a person who, immediately before the Division 8 commencement day, was both:
(a) a registered migration agent (even if, at that time, the person’s registration was under suspension, or had been taken to continue under subsection 300(4)); and
(b) an unrestricted legal practitioner.
End of registration
(2) The person’s registration as a migration agent ends at the start of the Division 8 commencement day, by force of this section.
333C Persons who were restricted legal practitioners immediately before the Division 8 commencement day
Scope
(1) This section applies in relation to a person who was a restricted legal practitioner immediately before the Division 8 commencement day (whether or not the person was a registered migration agent at that time).
Eligibility under section 278A
(2) The person’s eligible period for the purposes of section 278A is the period of 2 years after the Division 8 commencement day, despite subsection 278A(3).
Note: Subsection 278A(3) provides that generally the eligible period is the period of 2 years after the person first held a restricted practising certificate.
333D Registration applications made before the Division 8 commencement day
Scope
(1) This section applies in relation to a person if, immediately before the Division 8 commencement day:
(a) the person had made a registration application (whether or not the person had previously been registered as a migration agent); and
(b) the Migration Agents Registration Authority had not made a decision in relation to the application.
Application of amendments to registration applications
(2) The amendments of Division 3 made by Schedule 1 to the amending Act apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.
Note: On and after the Division 8 commencement day, some Australian legal practitioners cannot be registered as migration agents (see section 289B).
(3) If the person was an unrestricted legal practitioner immediately before the Division 8 commencement day, section 300 (automatic continuation of registration) does not apply on and after that day in relation to the registration application.
Note: If the registration had been taken to continue under subsection 300(4) before the Division 8 commencement day, the registration would end at the start of that day (see section 333B).
(4) Despite section 291 (applicant must not be registered if registration refused in past year), if the person’s registration application is refused because of section 289B (inserted by Schedule 1 to the amending Act), the refusal of the application does not prevent the person from being registered as a migration agent in accordance with a later registration application made at any time on or after the Division 8 commencement day.
333E Events required to be notified under s 312(4)
Subsection 312(4) (added by Schedule 1 to the amending Act) applies to require a registered migration agent to notify the Migration Agents Registration Authority that the agent has become a restricted or unrestricted legal practitioner if the agent becomes such a practitioner on or after the Division 8 commencement day.
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 ART or another tribunal, 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 section 11A 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—Reviewable migration decisions and reviewable protection decisions
Division 1—Preliminary
336M Simplified outline of this Part
This Part provides for the review of reviewable migration decision and reviewable protection decisions by the ART (short for the Administrative Review Tribunal).
Such decisions relate to the grant or cancellation of visas in some circumstances and to decisions under subsection 197D(2) (decision that protection finding would no longer be made). They do not include decisions in relation to which the Minister has given a conclusive certificate.
336N Scope of this Part
This Part applies in relation to the review by the ART of reviewable migration decisions and reviewable protection decisions.
Note: ART stands for Administrative Review Tribunal (see subsection 5(1)).
336P Interaction with the ART Act
(1) Subject to section 357A of this Act, the ART Act applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions unless this Part expressly provides otherwise.
(2) The following provisions of the ART Act do not apply in relation to the review by the ART of reviewable migration decisions or reviewable protection decisions:
(a) paragraph 21(2)(b) (notice of application to decision‑maker);
(b) paragraph 21(2)(c) (notice of application to other persons made a party to the proceedings);
(c) subsection 21(3) (notice of application and right to apply to become a party);
(d) section 23 (decision‑maker must give Tribunal reasons and documents—general rule);
(e) section 24 (decision‑maker must give Tribunal additional statement if Tribunal requires—general rule);
(f) section 25 (decision‑maker must give Tribunal additional documents within 28 days—general rule);
(g) section 27 (decision‑maker must give copies of reasons and documents to other parties—general rule);
(h) section 32 (reviewable decision continues to operate unless Tribunal orders otherwise);
(i) section 85 (tribunal may remit decision to decision‑maker for reconsideration);
(j) section 103 (if parties reach agreement—review of decisions only);
(k) section 107 (when Tribunal’s decision on review comes into operation);
(l) section 294 (legal or financial assistance), unless the review is of a decision referred to the guidance and appeals panel by the President of the ART under section 122 of the ART Act.
Note: Other provisions of this Part turn off or otherwise modify the operation of other provisions of the ART Act.
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 ART in relation to an application for review of a reviewable migration decision or a reviewable protection decision:
(a) a decision under section 105 of the ART Act to affirm the decision;
(b) a decision under section 105 of the ART Act to vary the decision;
(c) a decision under subsection 349(2) of this Act to remit a matter in relation to the decision for reconsideration;
(d) a decision under section 105 of the ART Act to set the decision aside and substitute a new decision;
(e) a decision under paragraph 368C(3)(b) or subsection 368C(5) of this Act to confirm a decision to dismiss the application.
nominated has the same meaning as in the regulations.
sponsored has the same meaning as in the regulations.
338 Meaning of reviewable migration decision
(1) A decision is a reviewable migration 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 reviewable protection decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a reviewable migration 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) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
(3) A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is a reviewable migration decision unless the decision:
(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 reviewable migration decision if the non‑citizen was in the migration zone when the decision was made.
(4) The following decisions are reviewable migration 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;
(c) a decision to not grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa under a provision of the regulations prescribed for the purposes of subsection 76E(4) that is not subject to any one or more of the conditions prescribed for the purposes of paragraph 76E(1)(a).
(5) A decision to refuse to grant a non‑citizen a visa is a reviewable migration decision if:
(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 reviewable migration 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 reviewable migration 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 reviewable migration 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 reviewable migration 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 reviewable migration decision.
338A Meaning of reviewable protection decision
(1) Subject to subsection (2), the following decisions are reviewable protection 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
(ii) 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);
(e) a decision under subsection 197D(2) that an unlawful non‑citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made.
(2) The following decisions are not reviewable protection decisions:
(a) decisions in relation to which the Minister has issued a conclusive certificate under section 339;
(b) any decision to cancel a protection visa that is made personally by the Minister;
(c) decisions made in relation to a non‑citizen who is not physically present in the migration zone when the decision is made.
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 reviewable migration decision (see paragraph 338(1)(a)) or a reviewable protection decision (see paragraph 338A(2)(a)).
Division 2—ART review
347 Application for ART review
Making an application
(1) An application may be made to the ART for review of a reviewable migration decision or a reviewable protection decision.
(2) The application must:
(a) include the prescribed information (if any); and
(b) be accompanied by the prescribed documents (if any); and
(c) be accompanied by the prescribed fee (if any).
Time for making an application
(3) An application must be made:
(a) if the applicant is in immigration detention on the day the applicant is notified of the decision—within 7 days after the day the applicant is notified of the decision; or
(b) otherwise—within 28 days after the day the applicant is notified of the decision.
Certain provisions of the ART Act do not apply
(4) Subsection (3) applies despite section 18 (when to apply—general rule) of the ART Act.
(5) Section 19 (ART may extend period) of the ART Act does not apply in relation to reviewable migration decisions or reviewable protection decisions.
(6) Subsections 34(2) and (3) (information to include in applications and validity) of the ART Act do not apply to an application to the ART for review of a reviewable migration decision or a reviewable protection decision.
(7) Paragraph (2)(c) has effect despite any rules made for the purposes of section 296 (Tribunal may charge fees) of the ART Act to the extent those rules relate to applications to the ART for review of reviewable migration decisions or reviewable protection decisions.
347A Who can apply for ART review etc.
(1) An application for review of a reviewable migration decision may only be made by:
(a) for a decision covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b) for a decision covered by subsection 338(5) or (8)—by the sponsor or nominator referred to in the subsection concerned; or
(c) for a decision covered by subsection 338(6) or (7)—by the relative referred to in the subsection concerned; or
(d) for a decision covered by subsection 338(9)—by the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (c) of this subsection.
(2) If the reviewable migration decision is covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(3) If the reviewable migration decision is 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) An application for review of a reviewable protection decision may only be made by the non‑citizen who is the subject of the decision.
(5) An application for review of a reviewable protection decision may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(6) This section has effect despite section 17 (who can apply) and section 35 (applications may be made on behalf of a person) of the ART Act.
348 ART to review reviewable migration decisions and reviewable protection decisions
(1) If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 and 347A, the ART must review the decision.
Note: The ART has no jurisdiction to review a decision if the application for review is not properly made.
(2) However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339.
348A Parties to a proceeding for review
(1) The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.
(2) Despite paragraph 22(1)(c) of the ART Act, a person cannot apply to the ART to become a party to the proceeding for review of a reviewable migration decision or a reviewable protection decision.
(3) The Minister:
(a) cannot give a notice to the ART under section 62 (Tribunal may allow non‑participating party to participate) of the ART Act; and
(b) cannot give written submissions in relation to the proceeding under subsection 63(1) of the ART Act.
(4) An order under subsection 63(2) of the ART Act can only be made by the President or a Deputy President of the ART in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
(5) Rules made for the purposes of subsection 64 (rules may deal with elections in relation to participation) of the ART Act do not apply in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
349 Remittal
(1) Subparagraph 105(c)(ii) of the ART Act does not apply in relation to a reviewable migration decision or a reviewable protection decision.
(2) If a reviewable migration decision or reviewable protection decision relates to a prescribed matter, the ART may, under this subsection:
(a) set aside the decision; and
(b) remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations.
(3) Paragraph (2)(a) of this section applies despite subsection 31(1) (decision cannot be altered outside Tribunal process) of the ART Act.
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 ART 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 ART 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 ART 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 ART 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 ART referred to in subsection (1A) another decision, being a decision that is more favourable to the applicant, whether or not the ART had the power to make that other decision.
(1A) For the purposes of subsection (1), the decisions are as follows:
(a) a decision under section 349 of this Act;
(b) a decision under section 368C of this Act;
(c) a decision under section 105 of the ART Act.
(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 ART; 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) in relation to a reviewable migration decision 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.
(5A) A statement made under subsection (4) in relation to a reviewable protection decision 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.
352 ART to notify Secretary of application for review
(1) If an application for review of a reviewable migration decision or a reviewable protection decision is made to the ART, the ART must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the ART the prescribed number of copies of a statement about the decision under review that:
(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 ART each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
Division 3—ART powers
353 ART may require Secretary to arrange for investigations etc.
(1) For the purpose of the review of a decision, the ART may require the Secretary to arrange for the making of any investigation, or any medical examination, that the ART considers necessary with respect to the review, and to give to the ART a report of that investigation or examination.
(2) This section applies in addition to, and does not limit, the ART’s powers under the ART Act (as modified by this Act).
Division 4—Conduct of ART review
357A Exhaustive statement of natural justice hearing rule
(1) The relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(2A) If there is any inconsistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:
(a) section 49 (Tribunal has discretion in relation to procedure);
(b) section 50 (Tribunal is to act informally etc.);
(c) section 53 (Tribunal controls scope of review of decision);
(d) section 55 (right to present case).
Note: The ART Act generally applies in relation to reviews by the ART (see subsection 336P(1)).
(2B) Without limiting subsection (2A), paragraph 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or a reviewable protection decision.
(2C) As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal with.
(2D) In this section, the relevant provisions are:
(a) this Division; and
(b) sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.
(3) In applying this Division, the ART must act in a way that is fair and just.
359A Information and invitation given by ART
(1) Subject to subsection (2), the ART must:
(a) give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(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 it.
(2) If the information or invitation is given to the applicant in writing, the information and invitation must be given:
(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) 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; or
(d) that was included, or referred to, in the written statement of the decision that is under review; or
(e) that is prescribed by regulation for the purposes of this paragraph.
(4A) The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.
(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 368C(6).
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 is entitled to request the Department provide access to any written material, or a copy of any written material, given or produced to the ART by the Department for the purposes of the review.
(1A) If an applicant makes a request under subsection (1), the Department must provide the applicant with access to the material.
(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 ART has given the applicant a copy of the statement required by subsection 368(1).
363 Reviews may be combined
The ART may combine the reviews of 2 or more reviewable migration decisions or reviewable protection decisions made in respect of the same person.
366D Examination and cross‑examination not permitted
A person is not entitled to examine or cross‑examine any person appearing before the ART 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 ART must make its decision on review, and notify the applicant of the decision, within the prescribed period.
(2) The ART may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
367A How ART is to deal with new claims or evidence in review of reviewable protection decisions
(1) This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
367B Certain ART proceedings must be in private
The hearing of a proceeding (within the meaning of the ART Act) for the review of a reviewable protection decision must be in private.
Note: Section 69 of the ART Act, which generally requires hearings to be in public, applies to hearings of proceedings for the review of reviewable migration decisions.
Division 5—ART decisions
368 ART’s decision and written statement etc.
Written statement must be made
(1) If the ART makes a decision on a review, the ART must make a written statement that:
(a) sets out the decision of the ART on the review; and
(b) includes a statement of reasons (within the meaning of the ART Act) for the ART’s decision; and
(c) in the case of a decision under paragraph 368C(3)(b) or subsection 368C(5) to confirm the dismissal of an application—indicates that, under subsection 368C(6), the decision under review is taken to be affirmed; and
(d) records the day and time the statement is made.
(2) Subsection (1) is subject to:
(a) paragraphs 375A(2)(b) and 376(3)(b) of this Act; and
(b) sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information—public interest certificate) of the ART Act.
Certain decisions may be given orally before written statement made
(3) Subject to subsection 368C(7), the ART may give a decision on a review and the reasons for the decision orally before making the written statement.
Note: Decisions made under paragraph 368C(3)(b) or subsection 368C(5) cannot be given orally (see subsection 368C(7)).
(4) If subsection (3) applies, the ART must identify, and make a written record of, the day and time the decision is given orally.
Decision cannot be changed
(5) The ART has no power to vary or revoke the decision after:
(a) if the decision on a review is given to the applicant orally before making the written statement—the day and time the decision is given orally; or
(b) otherwise—the day and time the written statement under subsection (1) is made.
When decision taken to have been made
(6) If the decision is not given to the applicant orally before the written statement is made, the 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.
(7) If the decision is given to the applicant orally before the written statement is made, the decision is taken to have been made, and notified to the applicant, on the day and at the time the decision is given orally to the applicant.
Validity etc. not affected by procedural irregularities
(8) The validity of a decision on a review, and the operation of subsection (5), are not affected by:
(a) a failure to record, under paragraph (1)(d), the day and time when the written statement was made; or
(b) a failure to identify or record, under subsection (4), the day and time when the decision was given orally.
Interaction with the ART Act
(9) This section applies despite sections 111 (notice of decision and statement of reasons—review of reviewable decision) and 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368A Notification of ART’s decision
(1) The ART must notify the applicant of a decision on a review by giving the applicant a copy of the written statement made under subsection 368(1).
(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.
(3) A copy of that statement must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made.
(4) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
(5) This section applies despite subsection 111(3) and section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368B Notice of dismissal and reinstatement decisions and when taken to have been made
Decisions to which this section applies
(1) This section applies in relation to the following decisions:
(a) a decision under the ART Act to dismiss an application for review of a reviewable migration decision or a reviewable protection decision;
(b) a decision under 368C of this Act to reinstate an application.
Written statement
(2) The ART must make a written statement that:
(a) sets out the decision of the ART; and
(b) records the day and time the statement is made.
(3) The decision is taken to have been made:
(a) by making the written statement; and
(b) on the day and at the time the written statement is made.
(4) The ART has no power to vary or revoke the decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 368C(4)).
Notice to applicant
(5) The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(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.
Notice to Secretary
(6) A copy of the written statement made under subsection (2) must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made
Validity etc. not affected by procedural irregularities
(7) The validity of a decision to which this section applies, and the operation of subsection (4), are not affected by:
(a) a failure to record, under paragraph (2)(b), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5) or (6).
Interaction with ART Act
(8) This section applies despite section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368C Reinstatement of application or confirmation of dismissal
(1) This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
(2) If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
(a) section 99 (Tribunal may dismiss application if applicant does not appear);
(b) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
(c) section 101 (Tribunal may dismiss application if frivolous, vexatious etc.).
Note: Section 379C sets out when a person is taken to have received a document from the ART for the purposes of this Part.
(3) On application for reinstatement in accordance with subsection (2), the ART must:
(a) if it considers it appropriate to do so—reinstate the application by written statement under 368B; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application.
(4) If the ART reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the ART must conduct (or continue to conduct) the review accordingly.
(5) If the applicant fails to apply for reinstatement within the 28‑day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the ART must notify the applicant of a decision to confirm the dismissal of the application.
(6) If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(7) The ART cannot give a decision orally under subsection (3) or (5).
369 Identifying information relating to reviewable protection decisions not to be published
(1) This section applies to reviewable protection decisions.
(2) The ART must not publish information under section 113 of the ART Act which may identify:
(a) an applicant for review of a decision; or
(b) any relative or other dependant of an applicant for review of a decision.
Division 6—Other matters
374 How the ART must give certain notices and directions to an applicant
Notification of case event
(1) If the ART gives a written notice to an applicant for review of a reviewable migration decision or a reviewable protection decision under subsection 72(1) of the ART Act, the ART must give the notice to the applicant:
(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.
Directions in relation to procedure
(2) If the ART gives a direction in relation to the procedure to be followed for a proceeding for review of a reviewable migration decision or a reviewable protection decision under subsection 79(1) of the ART Act:
(a) the direction must be given to the applicant in writing; and
(b) the ART must give the direction to the applicant:
(i) except where subparagraph (ii) applies—by one of the methods specified in section 379A; or
(ii) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
375 Restrictions on disclosure of certain information etc.
In spite of anything else in this Act or the ART Act, the Secretary shall not give to the ART a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(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 ART
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the ART, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the ART.
(2) If, pursuant to a requirement of or under this Act or the ART Act, the Secretary gives to the ART a document or information to which this section applies:
(a) the Secretary must notify the ART 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 an ART member of the ART as constituted for the purposes of the particular review.
376 ART’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 ART; 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 or the ART Act, the Secretary gives to the ART a document or information to which this section applies, the Secretary:
(a) shall notify the ART in writing that this section applies in relation to the document or information; and
(b) may give the ART any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the ART is given a document or information and is notified that this section applies in relation to it, the ART:
(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 ART thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the ART.
378 Protected information and documents
(1) An entrusted person must not be required to produce or disclose a protected document, or protected information, to a parliament if:
(a) the document or information relates to a reviewable protection decision; and
(b) the production or disclosure is not necessary for the purposes of carrying into effect the provisions of the ART Act or another enactment conferring powers on the ART.
(2) Subsection (1) applies despite subsection 274(1) of the ART Act.
(3) In this section:
entrusted person has the same meaning as in the ART Act.
parliament means:
(a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.
protected document has the same meaning as in the ART Act.
protected information has the same meaning as in the ART Act.
Division 7—Giving and receiving documents
379AA Giving documents by ART where no requirement to do so by specified method
(1) If:
(a) a provision of this Act, regulations made under this Act, or the ART Act (as modified by this Act) requires or permits the ART to give a document to a person (other than the Secretary); and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 379A; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the ART may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA.
Note 2: Under section 379G an applicant may give the ART the name of an authorised recipient who is to receive documents on the applicant’s behalf.
Note 3: ART practice directions apply in relation to the giving of documents to the Secretary.
(2) If a person is a minor, the ART may give a document to an individual who is at least 18 years of age if an ART member, the ART Principal Registrar or a member of the staff of the ART reasonably believes that:
(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 ART gives a document to an individual, as mentioned in subsection (2), the ART is taken to have given the document to the minor. However, this does not prevent the ART giving the minor a copy of the document.
(4) If a provision of the ART Act (other than section 79) permits or requires the ART to make an order, the provision is taken, for the purposes of this section, to be a provision of the ART Act that requires or permits the ART to give a document to a person.
Note: Orders given under section 79 (Tribunal may give directions in relation to procedure for proceeding) of the ART Act are dealt with by section 374 of this Act.
379A Methods by which ART gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the ART to give a document to a person (the recipient); and
(b) state that the ART must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the ART may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who an ART member, the ART Principal Registrar or a member of the staff of the ART (each of whom is an ART official) reasonably believes:
(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 ART gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
(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 an ART official or a person authorised by the ART Principal Registrar handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of an ART official or a person authorised by the ART Principal Registrar handing the document to another person who:
(a) is at the last residential or business address provided to the ART 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 an ART official 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 ART by the recipient in connection with the review; or
(ii) the last residential or business address provided to the ART 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 ART official.
Transmission by fax, email or other electronic means
(5) Another method consists of an ART official 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 ART 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 ART official.
Documents given to a carer
(6) If the ART gives a document to a carer of a minor, the ART is taken to have given the document to the minor. However, this does not prevent the ART giving the minor a copy of the document.
379C When a person other than the Secretary is taken to have received a document from the ART
(1) This section applies if the ART gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Giving by hand
(2) If the ART gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the ART gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the ART gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(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 ART gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Document not given effectively
(7) If:
(a) the ART purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
(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 ART had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
379EA Giving documents by ART—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 ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
Note 2: Section 379G deals with giving documents to a person’s authorised recipient.
379G Authorised recipient
(1) If:
(a) a person (the applicant) applies for review of a reviewable migration decision or a reviewable protection decision; and
(b) the applicant gives the ART written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the ART must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a reviewable migration decision or a reviewable protection decision where the application is not properly made under section 347 or 347A; and
(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 either or both of those sections).
(2) If the ART gives a document to the authorised recipient, the ART is taken to have given the document to the applicant. However, this does not prevent the ART giving the applicant a copy of the document.
(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 ART giving documents to, or communicating with, the applicant when the applicant is appearing before the ART.
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), (4A) 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 |
1A | section 140RB | Compliance notices for failing to satisfy sponsorship obligations |
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 |
6A | section 245AYP | Compliance notices for work‑related breaches |
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 |
31 | regulation 5.35 | Medical treatment of persons in detention |
(4A) For the purposes of subsection (2), a decision under subsection 185(1) of the ART Act to refer a question of law arising in a proceeding for review of a reviewable migration decision or a reviewable protection decision to the Federal Court for decision is not a privative clause decision.
(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, or under the ART Act, is not a privative clause decision.
(6) A decision mentioned in subsection (4) or (4A), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection (5), is a non‑privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection (2):
(a) 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 or 351 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.
Note: Section 91Q was repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023.
Division 1A—Interaction with the ART Act
474AA Interaction with the ART Act
(1) Part 7 of the ART Act does not apply to an application in relation to, or a proceeding for the review of, any of the following:
(a) a privative clause decision;
(b) a purported privative clause decision;
(c) an ART Act migration decision.
(2) Despite subsection (1):
(a) section 185 (referring questions of law) of the ART Act applies to an application in relation to, or a proceeding for the review of, a reviewable migration decision or a reviewable protection decision; but
(b) the ART does not have a duty to consider a request to refer a question of law at the request of a party to a proceeding.
(2A) To avoid doubt, if the ART refers a question of law under section 185 of the ART Act, Division 6 of Part 7 of that Act applies in relation to the proceeding before the Federal Court in relation to the reference.
(3) Subdivision A of Division 2 of Part 7 of the ART Act (appeals on questions of law) does not apply to a decision of the ART under section 185 of that Act (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision.
Division 2—Jurisdiction and procedure of courts
474A Definition of ART Act migration decision
(1) A decision under a provision of the ART Act mentioned in subsection (2) is an ART Act migration decision, to the extent that the decision is made in relation to any of the following:
(a) a review of a particular reviewable migration decision or a particular reviewable protection decision;
(b) a function of the ART in relation to the exercise of its jurisdiction to review reviewable migration decisions or reviewable protection decisions;
(c) an ART member in the Migration jurisdictional area;
(d) an ART member in the Protection jurisdictional area.
Note: An ART Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)).
(2) The provisions of the ART Act are as follows:
(a) Division 3 of Part 4;
(b) Subdivisions A, B and D of Division 4 of Part 4;
(c) section 58;
(d) sections 197 to 199;
(e) Subdivision A of Division 3 of Part 8;
(f) sections 214 to 216;
(g) section 218;
(h) section 221;
(i) section 227;
(j) sections 237 to 239;
(k) section 243.
(l) Divisions 3 and 4 of Part 11.
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 and Family Court of Australia (Division 2)
(1) Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit and Family Court of Australia (Division 2) 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 ART 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;
(ca) a non‑privative clause decision mentioned in subsection 474(4A);
(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 and Family Court of Australia (Division 2) may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 179 of the ART Act.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under by application under Part 5 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.
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) both:
(i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or
(b) the decision is a privative clause decision, or a purported privative clause decision, of the ART 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 section 176 (Federal Court has jurisdiction) or subsection 185(3) (referring questions of law) of the ART Act.
Note: The Federal Court’s jurisdiction referred to in paragraph (d) is limited: see section 474AA.
(1A) To avoid doubt, the Federal Court does not have original jurisdiction in relation to a migration decision under subsection (1) in respect of proceedings that are transferred to the Federal Court under section 32AC of the Federal Court of Australia Act 1976.
(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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2).
(2) The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Circuit and Family Court of Australia (Division 2) unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.
(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 and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under section 105 of the ART Act (other than a decision made by the ART in relation to an application under Part 5)—the day the decision is made under that section; or
(b) in the case of a migration decision made by the ART in relation to an application under Part 5—the day the decision is taken to have been made under subsection 368(6) or (7) or 368B(3); or
(c) 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 by application under Part 5 or section 500—the applicant in the review by the ART; 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 by application under Part 5 or section 500—the applicant in the review by the ART; 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 and Family Court of Australia (Division 2) or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit.
(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 and Family Court of Australia (Division 2)
(1) Only the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have jurisdiction in relation to migration decisions.
(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), but to exclude other courts from jurisdiction in relation to migration decisions.
(3) To avoid doubt, despite 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 and Family Court of Australia (Division 2) that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens.
Consolidation of proceedings
(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 and Family Court of Australia (Division 2) or the Federal Court
(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court that raises an issue:
(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 jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) 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:
(a) proceedings:
(i) that are transferred to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii) whose transfer are confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976; and
(b) proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).
(3B) To avoid doubt, this section does not apply to proceedings that are transferred to the Federal Court under section 32AC of the Federal Court of Australia Act 1976.
(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 and Family Court of Australia (Division 2) in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(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 and Family Court of Australia (Division 2) 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 by the ART by application under Part 5 or section 500.
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 and Family Court of Australia (Division 2); 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.
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.
(5) This section does not apply to the giving of any of the following documents:
(a) a document relating to the proposed cancellation of a visa;
(b) a document relating to the cancellation of a visa;
(c) a document relating to the revocation of the cancellation of a visa;
(d) a document relating to a decision not to revoke the cancellation of a visa.
Note 1: The Minister must give a person a document mentioned in this subsection in the way prescribed by the regulations for the document (see, for example, subsections 119(2), 127(2A) and 501G(3) and paragraph 504(1)(e)).
Note 2: For the giving of such a document to the person’s authorised recipient, see section 494D.
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 method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available 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), (5) or (5A), 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 by the recipient 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.
Making document available by way of online account
(5A) Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.
When the Minister hands a document by way of an authorised officer
(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.
Making document available by way of online account
(6) If the Minister gives a document to a person by the method in subsection 494B(5A) (which involves making the document available by way of an online account), the person is taken to have received the document at the end of the day on which it is made available.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method (the relevant method) specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then, despite the error:
(c) the document is taken to have been given in accordance with the relevant method; and
(d) the person is taken to have received the document:
(i) at the time mentioned in this section for the relevant method; or
(ii) if the person can show that the person received the document at a later time—at that later 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).
494E When documents are taken to comply with content requirements
(1) This section applies in relation to a document if:
(a) a provision of this Act or the regulations requires or permits the Minister to give the document to a person; and
(b) a provision of this Act or the regulations requires (the content requirements) the document to include particular information.
(2) For the purposes of this Act or the regulations, the document is taken to comply with the content requirements if:
(a) there is substantial compliance with those requirements; and
(b) the failure to strictly comply with those requirements does not, or is not likely to, cause substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
(3) Subsection (2) applies despite any other provision of this Act or the regulations.
(4) Without limiting paragraph (2)(a), there may be substantial compliance with the content requirements even if there is an error, omission, misstatement or misdescription in the document.
(5) Without limiting paragraph (2)(b), a failure by the person to:
(a) exercise any rights (including, but not limited to, rights to seek review) in connection with the matter to which the document relates; or
(b) take any other action (including, but not limited to, the making of representations) in connection with the matter to which the document relates;
is not on its own to be taken to imply that the failure to strictly comply with the content requirements has caused substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
Example 1: Andrew, George and Daniel each make an application for the grant of a visa. The Minister refuses to grant each applicant the visa and gives notice of the refusal decision to each applicant. The notice states that the applicant may make an application for review of the refusal decision within 30 days after the notice is received by the applicant.
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misstates the period. The correct period is 28 days after the notice is received by the applicant.
Andrew makes an application for review of the refusal decision 25 days after receiving the notice. As the misstatement in the notice does not cause substantial prejudice to Andrew’s right to seek review, it is intended that subsection (2) would apply in relation to the notice given to Andrew.
George makes an application for review of the refusal decision 29 days after receiving the notice. The misstatement in the notice causes substantial prejudice to George’s right to seek review as the application for review is not made within the required period but is made within the misstated period specified in the notice. It is intended that subsection (2) would not apply in relation to the notice given to George.
Daniel makes an application for review of the refusal decision 40 days after receiving the notice. The misstatement in the notice does not cause substantial prejudice to Daniel’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to Daniel.
Example 2: Anne applies for a visa and has an authorised recipient under section 494D. The Minister refuses to grant Anne the visa and gives notice of the refusal decision by sending an email to the authorised recipient. The authorised recipient receives the notice and 2 days later forwards it on to Anne.
The notice states that Anne may make an application for review of the refusal decision within 21 days after the day Anne receives the notice. The notice does not explain that the effect of sections 494C and 494D is that the period of 21 days begins to run on the day after the day the notice is received by the authorised recipient, rather than by Anne.
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misdescribes when that period begins to run.
Anne makes an application for review of the refusal decision 35 days after receiving the notice. The misdescription in the notice does not cause substantial prejudice to Anne’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to the authorised recipient.
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) An application may be made to the ART 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.
(1A) Section 85 (ART may remit decision to decision‑maker for reconsideration) of the ART Act does not apply in relation to a review by the ART of a decision referred to in subsection (1).
(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 by application under Part 5 if the decision had been made on another ground.
(4) The following decisions are not reviewable by application under Part 5:
(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 by application under Part 5:
(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 ART for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by:
(a) the ART (for example, an order under subsection 32(2) (ART may stay operation or implementation) of the ART Act); or
(c) the Federal Court of Australia or a Judge of that Court under subsection 178(2) of that Act; or
(d) the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court under subsection 178(2) of that Act, as it applies because of subsection 179(4) of that Act.
(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 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act 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 ART for a review of the decision must be lodged with the ART within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, sections 18 and 19 of the ART Act do not apply to the application.
(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 ART 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.
(6CA) Subsection (6C) applies despite subsection 34(2) of the ART Act.
(6CB) A failure to comply with subsection (6C) in relation to an application does not affect the validity of the application.
(6D) If an application is made to the ART for a review of a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, that relates to a person in the migration zone:
(a) the ART must give written notice of the application to:
(i) the applicant; and
(ii) the Secretary; and
(b) sections 21 and 23 of the ART Act do not apply to the decision or the application.
(6F) If:
(a) an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
then:
(c) the Minister must lodge with the ART, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document that:
(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 ART may have regard to that non‑disclosable information for the purpose of reviewing the decision, but must not disclose that non‑disclosable information to the person making the application.
(6FA) The ART may direct the Minister to lodge a specified number of additional copies of a document to which paragraph (6F)(c) applies within the period mentioned in that paragraph. The Minister must comply with the direction.
(6FB) Sections 24 and 26 of the ART Act do not apply in relation to an application to the ART for a review of a decision under section 501 or subsection 501CA(4) of this Act.
(6G) If:
(a) an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the ART must not:
(c) hold a hearing (other than a directions hearing); or
(d) make a decision under section 105 of the ART Act;
in relation to the decision under review until at least 14 days after the day on which the Minister was notified that the application had been made.
(6H) If:
(a) an application is made to the ART for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the ART must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the ART holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the ART for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the ART must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the ART holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or ART under subsection 501G(2) or subsection (6F) of this section.
(6K) If:
(a) an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone; and
(c) the ART is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review;
then:
(d) the ART may cause to be served on the Minister a notice in writing stating that the ART is of that opinion and requiring the Minister to lodge with the ART, within a time specified in the notice, a copy, or the number of copies specified in the notice, of each of those documents that is in the Minister’s possession or under the Minister’s control; and
(e) the Minister must comply with any such notice.
(6L) If:
(a) an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone; and
(c) the ART has not made a decision under the provisions of the ART Act mentioned in subsection (6M) in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the ART is taken, at the end of that period, to have made a decision under section 105 of the ART Act to affirm the decision under review.
(6M) For the purposes of paragraph (6L)(c), the provisions of the ART Act are as follows:
(a) section 95 (applicant may withdraw application);
(b) section 96 (Tribunal may dismiss application if parties consent);
(c) section 97 (Tribunal must dismiss application if decision is not reviewable decision);
(d) section 98 (Tribunal may dismiss application if fee is not paid);
(e) section 99 (Tribunal may dismiss application if applicant does not appear);
(f) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
(g) section 101 (Tribunal may dismiss application if frivolous, vexatious etc);
(h) section 103 (if parties reach agreement—review of decisions only);
(i) section 105 (Tribunal decision on review of reviewable decision).
(7) In this section, decision has the same meaning as in the ART Act.
(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.
500AA Applications generally cannot be made to the ART guidance and appeals panel
(1) An application cannot be made under section 123 of the ART Act to refer a decision of the ART to the guidance and appeals panel in relation to an application for review of a decision under this Act.
(2) Subsection (1) does not apply in relation to an application for review of a decision under Part 3.
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, in writing, notify the person of the decision. However, failure to do so does not affect the validity of the decision.
(10A) If the notification under subsection (10) relates to a decision to cancel a person’s temporary safe haven visa, the notification must be given in the prescribed way.
Natural justice and code of procedure not to apply to decision
(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.
(4A) If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.
(4B) Subsection (4A) does not apply if:
(a) the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or
(b) the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.
(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 ART;
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 the ART that the person passes the character test and whether or not the delegate or the ART reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(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 by application under Part 5
(7) A decision under subsection (2) or (3) is not reviewable by application under Part 5.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
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 by application under Part 5.
(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the ART.
Note: For notification of decisions under this section, see section 501G.
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 ART;
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 by application under Part 5
(5) A decision under subsection (2) is not reviewable by application under Part 5.
Note: For notification of decisions under subsection (2), see section 501G.
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:
(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.
(3A) If the notice under subsection (3) relates to an original decision to cancel a visa, the notice must be given in the prescribed way.
(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 by application under Part 5.
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:
(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.
(3A) The notice under subsection (3) must be given in the prescribed way.
(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 by application under Part 5.
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 by application under Part 5.
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 ART:
(i) states that the decision can be reviewed by the ART; 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 ART; 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 way.
(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.
(5) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (1) of this section.
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 ART protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the ART had the power to make that other decision.
(2) For the purposes of this section, an ART protection visa decision is a decision of the ART in relation to an application for, or the cancellation of, a protection visa.
(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 ART; 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 ART
(1) This section applies to a review by the ART 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 ART 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 and Family Court of Australia (Division 2); and
(b) the officer must not give the information in evidence before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
The information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if a fresh disclosure of the information is made in accordance with:
(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 and Family Court of Australia (Division 2); and
(b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
The information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if a fresh disclosure of the information is made in accordance with:
(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 121.1 of the Criminal Code.
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 and Family Court of Australia (Division 2)—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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) for the purposes of the substantive proceedings;
the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), the information is not divulged or communicated to:
(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 orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
(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 and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Criteria for making non‑disclosure order
(5) In exercising its powers under subsection (1), the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) must have regard to all of the following matters:
(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 and Family Court of Australia (Division 2) for the purposes of enabling the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to make a decision on the application.
(7) If information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (6):
(a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings; and
(b) the information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings if a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3).
Variation or revocation of non‑disclosure order
(8) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (1) if both:
(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 and Family Court of Australia (Division 2) for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) is considering whether to make an order under subsection (1).
(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 and Family Court of Australia (Division 2) 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 jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) 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 Review Tribunal; (b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a). | the person who applied to the Administrative Review 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 and Family Court of Australia (Division 2)—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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre‑empt:
(c) the consideration of the subsection 503B(1) application by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2); 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 and Family Court of Australia (Division 2).
(4) The orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
(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 and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Variation or revocation of non‑disclosure order
(7) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (3) if both:
(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.
503E Validation of decisions
(1) If:
(a) section 503A is not a valid law of the Commonwealth (in whole or in part); and
(b) the Minister made a decision under section 501, 501A, 501B, 501BA, 501C or 501CA before the commencement of this section;
the decision is not invalid, and is taken never to have been invalid, merely because:
(c) the Minister:
(i) relied on; or
(ii) had regard to; or
(iii) failed to disclose in accordance with any applicable common law or statutory obligation;
information that was covered, or purportedly covered, by subsection 503A(1) or (2); or
(d) the Minister made the decision on the basis of an erroneous understanding of:
(i) section 503A; or
(ii) the protection that section 503A would provide against an obligation to disclose information.
(2) However, subsection (1) does not affect rights or liabilities arising between parties to proceedings in which:
(a) judgment is reserved by a court as at the commencement of this section; or
(b) judgment has been delivered by a court before the commencement of this section;
and the judgment sets aside, or declares invalid, a decision made by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA.
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;
(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.
(2A) The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations specifying circumstances in which a document is to be taken to have been given in a specified way.
(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.
506B Tax file numbers
Request for tax file numbers
(1) The Secretary may request any of the persons mentioned in subsection (2) to provide the tax file number of a person (the relevant person) who is an applicant for, or holder or former holder of, a visa of a kind (however described) prescribed by the regulations.
(2) For the purposes of subsection (1), the persons are any of the following:
(a) the applicant, holder or former holder;
(b) an approved sponsor of the applicant, holder or former holder;
(c) a former approved sponsor of the applicant, holder or former holder;
(d) a person who has nominated the applicant or holder in an approved nomination that has not ceased under the regulations;
(e) a person who nominated the holder or former holder in an approved nomination that has ceased under the regulations.
(3) A person to whom a request is made under subsection (1) who is lawfully in possession of the tax file number may disclose the tax file number in accordance with the request.
Verification of tax file numbers
(4) The Secretary may provide the tax file number to the Commissioner of Taxation for the purpose of verifying the tax file number.
(5) On receiving the tax file number, the Commissioner of Taxation may give the Secretary a written notice in accordance with the following table.
Notices of the Commissioner of Taxation |
Item | If … | the Commissioner may give the Secretary written notice … |
1 | the Commissioner is satisfied that the number is correct | informing the Secretary accordingly. |
2 | (a) the Commissioner is satisfied that the tax file number is not correct; and (b) the Commissioner is satisfied that the relevant person has a tax file number; | of the correct tax file number. |
3 | (a) the Commissioner is satisfied that the tax file number is not correct; and (b) the Commissioner is not satisfied that the relevant person has a tax file number; | informing the Secretary accordingly. |
Commissioner of Taxation may provide tax file number
(6) The Commissioner of Taxation may provide the tax file number of a person to the Secretary if the Secretary advises the Commissioner that the person is a relevant person.
Use, records or disclosures of tax file numbers
(7) A tax file number provided under this section may be used, recorded or disclosed by an officer for any purposes prescribed by the regulations.
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).
