Part 2—Control of arrival and presence of non‑citizens
Division 14—Recovery of costs from certain persons
262
Liability to the Commonwealth for the cost of keeping, maintaining and removing
certain persons because of section 250
A person who:
(a) is in immigration detention
because of subsection 250(2); and
(b) while in that immigration
detention, is convicted 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 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) a fair amount 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).
263
Secretary 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 gives written notice
to the person giving particulars of the liability and stating that the
Secretary 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 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 gives the notice, the Secretary 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 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 believes on
reasonable grounds that the person will, under section 262, become liable
to pay the amount to the Commonwealth.
267
Secretary may freeze amounts to secure future debts
(1) If there is a future debt in relation to
a person (future debtor), the Secretary 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 gives the notice, the Secretary 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 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.
new ESOS Act means the Education Services
for Overseas Students Act 2000.
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.
old ESOS Act means the Education Services
for Overseas Students (Registration of Providers and Financial Regulation) Act
1991.
premises means:
(a) an area of land or any other
place, whether or not it is enclosed or built on; or
(b) a building or other structure; or
(c) a vehicle or vessel;
and includes a part of any such premises.
production notice means a notice given under
section 268BA.
tribunal member means a member of the
Administrative Appeals Tribunal.
visa monitoring purpose means a purpose of
determining whether the conditions of a particular student visa or visas, or of
student visas generally, are being or have been complied with.
268AB
Division binds the Crown
(1) This Division binds the Crown in each of
its capacities.
(2) However, nothing in this Division makes
the Crown in any capacity liable to be prosecuted for an offence.
268AD
Powers conferred on magistrates in their personal capacity
(1) A power conferred on a magistrate by
section 268BQ, 268CE, 268CU or 268CZD is conferred on the magistrate in a
personal capacity and not as a court or a member of a court.
(2) The magistrate need not accept the power
conferred.
(3) A magistrate exercising a power mentioned
in subsection (1) has the same protection and immunity as if he or she
were exercising that power as, or as a member of, the court of which the
magistrate is a member.
Subdivision B—Notices requiring information and documents
268BA
Production notices
(1) This section applies if the Secretary
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 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 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 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; 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.
(2) However, if the Secretary 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
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 may give the individual
written notice requiring the individual to attend before an authorised officer
and answer questions about the matter.
Note: The Secretary 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 is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
(2) However, a person is not guilty of 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 is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
268BJ
Offence: giving false or misleading document
(1) A person who gives or shows an authorised
officer 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, is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
(2) However, the person is not guilty of 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 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 thinks appropriate.
268BO
Retaining documents
(1) This section applies 60 days after a
document is given to an authorised officer under this Subdivision.
(2) The authorised officer must take
reasonable steps to return the document to the person who gave the officer the
document or to the owner if that person is not entitled to possess it.
(3) However, the authorised officer does not
have to take those steps if:
(a) the authorised officer may retain
the document because of an order under section 268BQ; or
(b) the authorised officer is
otherwise authorised (by a law, or an order of a court, of the Commonwealth or
a State) to retain, destroy or dispose of the document.
268BP
Officer may apply to magistrate or tribunal member for a further period
(1) An authorised officer given a document
under this Subdivision, or another officer who is currently retaining such a
document, may apply to a magistrate or tribunal member for an order that the
officer may retain the document for a further period.
(2) The application must be made before the
end of:
(a) 60 days after the document was
given to the authorised officer; or
(b) a period previously specified in
an order of a magistrate or tribunal member under section 268BQ.
(3) Before making the application, the
officer must:
(a) take reasonable steps to discover
which persons’ interests would be affected by the retention of the document;
and
(b) if it is practicable to do so,
notify each person who the officer believes to be such a person of the proposed
application.
268BQ
Magistrate or tribunal member may order retention for further period
(1) The magistrate or tribunal member may
order that the officer who made the application under section 268BP may
retain the document if the magistrate or tribunal member is satisfied that it
is necessary for the officer to retain it:
(a) for the purposes of this Act; or
(b) for the purposes of an
investigation as to whether an offence has been committed; or
(c) to enable evidence of an offence
to be secured for the purposes of a prosecution.
(2) The order must specify the period for
which the officer may retain the document.
Subdivision C—Searching education providers’ premises
268CA
Authorised officer may enter premises for a visa monitoring purpose
(1) An authorised officer may for a visa
monitoring purpose:
(a) enter any premises:
(i) occupied by an
education provider for the purposes of providing courses of education or of
training; or
(ii) at which it is
reasonable to believe there might be a thing belonging to or possessed by an
education provider, or an activity conducted by or with the consent of the
provider, that is relevant to a visa monitoring purpose (whether or not those
premises are occupied by the provider); and
(b) exercise the monitoring powers set
out in section 268CI.
(2) An authorised officer is not authorised
to enter premises under subsection (1) unless:
(a) the occupier of the premises has
consented to the entry and the officer has shown his or her identity card if
requested by the occupier; or
Note: Section 268CC sets out the requirements for
obtaining the occupier’s consent.
(b) the entry is made under a
monitoring warrant.
Note: Monitoring warrants are issued under section 268CE
or 268CZD.
(3) The powers in this Subdivision may be
exercised even if any relevant student visa is no longer in effect or the
holder of any such visa is no longer enrolled in a course provided by the
education provider.
268CB
Being on premises with consent
(1) An authorised officer may enter premises
under section 268CA with the consent of the occupier of the premises at
any reasonable time of the day or night.
(2) However, the authorised officer must
leave the premises if the occupier asks the officer to do so.
268CC
Consent
(1) Before obtaining the consent of a person
for the purposes of paragraph 268CA(2)(a), the authorised officer must inform
the person that he or she may refuse consent.
(2) An entry of an authorised officer with
the consent of a person is not lawful unless the person voluntarily consents to
the entry.
268CD
Authorised officer may apply for monitoring warrant
(1) An authorised officer may apply to a
magistrate or tribunal member for a monitoring warrant in relation to premises
mentioned in subsection 268CA(1).
Note: Monitoring warrants may also be obtained by
telephone, fax or other electronic means in urgent circumstances: see section 268CZD.
(2) The officer must give the magistrate or
tribunal member an information on oath or affirmation that sets out the grounds
for seeking the warrant.
268CE
Magistrate or tribunal member may issue monitoring warrant
The magistrate or tribunal member may
issue a monitoring warrant if he or she is satisfied that it is reasonably
necessary that one or more authorised officers have access to the premises
mentioned in subsection 268CA(1) for a visa monitoring purpose.
268CF
Magistrate or tribunal member may require more information
(1) The magistrate or tribunal member may
require an authorised officer or other person to give the magistrate or
tribunal member further information on oath or affirmation concerning the
grounds on which the monitoring warrant is being sought before issuing it.
(2) The information may be given either
orally or by affidavit.
(3) The magistrate or tribunal member must
not issue the warrant until the officer or other person has given the required
information.
268CG
Contents of monitoring warrant
(1) A monitoring warrant must:
(a) authorise one or more authorised
officers:
(i) to enter the premises;
and
(ii) to exercise the powers
under section 268CI in relation to the premises; and
(b) state whether the entry is
authorised at any time of the day or night or during specified hours of the day
or night; and
(c) state the day and time at which it
ceases to have effect (which must be no later than 7 days after it is issued);
and
(d) state the purpose for which the
warrant is issued; and
(e) state that the warrant is issued
under section 268CE.
(2) The authorised officers do not have to be
named in the warrant.
268CH
Use of reasonable force and assistance
An authorised officer may use such
assistance and force as is necessary and reasonable in entering the premises
under a monitoring warrant and exercising the powers under section 268CI.
268CI
Monitoring powers of authorised officers
(1) For the purposes of this Subdivision, the
following are the monitoring powers that an authorised officer
may exercise in relation to premises under section 268CA:
(a) to search the premises, and any
receptacle on the premises, for any thing on the premises belonging to or
possessed by the education provider that might be relevant to a visa monitoring
purpose;
(b) to examine any such thing;
(c) to examine any activity that is
conducted on the premises by, or with the consent of, the education provider
that might be relevant to a visa monitoring purpose;
(d) to take photographs or make video
or audio recordings or sketches on the premises of any such activity or thing;
(e) to inspect any document on the
premises belonging to or possessed by the education provider that might be
relevant to a visa monitoring purpose;
(f) to take extracts from or make
copies of any such document;
(g) to take onto the premises any
equipment and materials that the authorised officer requires for the purpose of
exercising powers in relation to the premises;
(h) the powers in subsections (2),
(3) and (5).
(2) For the purposes of this Subdivision, the
monitoring powers include the power to operate equipment that is
on the premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage
device that:
(i) is on the premises;
and
(ii) can be used with the
equipment or is associated with it;
contains information belonging to the education provider
that is relevant to a visa monitoring purpose.
(3) For the purposes of this Division, the monitoring
powers include the following powers in relation to information
described in subsection (2) that is found in the exercise of the power
under that subsection:
(a) to operate facilities that are on
the premises to put the information in documentary form and remove the
documents so produced;
(b) to operate such facilities to
transfer the information to a disk, tape or other storage device that:
(i) is brought to the
premises for the exercise of the power; or
(ii) is on the premises and
the use of which for that purpose has been agreed to in writing by the
education provider or occupier (as appropriate);
(c) to remove from the premises a
disk, tape or other storage device to which the information has been
transferred in exercise of the power under paragraph (b).
(4) The powers mentioned in subsections (2)
and (3) must be exercised in accordance with sections 268CO, 268CP and
268CQ.
(5) If an authorised officer, during a search
of premises, reasonably believes that there is on the premises a thing that
might afford evidence of the commission of an offence against this Act or the
regulations, the Crimes Act 1914 or the Criminal Code, the monitoring
powers include securing the thing pending the obtaining of a warrant to
seize it.
268CJ
Authorised officer on premises with consent may ask questions
An authorised officer who is only
authorised to enter premises because the occupier of the premises consented to
the entry may:
(a) ask the occupier to:
(i) answer any questions
that are relevant to a visa monitoring purpose; and
(ii) give or show the
officer any document requested by the officer that is relevant to the matter;
or
(b) ask any person on the premises to
answer any questions that may facilitate the exercise of monitoring powers in
relation to the premises.
Note: A person could be guilty of 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 be guilty of an offence if the
person fails to comply with a requirement under this section: see section 268CL.
Note 2: A person could be guilty of 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 is guilty of an offence if the
person refuses or fails to comply with a requirement under section 268CK (officer
on premises under warrant may ask questions).
Maximum penalty: Imprisonment for 6 months.
(2) However, a person is not guilty of 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 section 268CJ
or 268CK (officer may ask questions) is guilty of an offence.
Maximum 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 an authorised
officer a document that is false or misleading in a material particular, in the
course of complying or purporting to comply with section 268CJ or 268CK
(officer may ask questions), is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
(2) However, the person is not guilty of an
offence if the document is accompanied by a written statement signed by the
person:
(a) stating that the document is, to
the person’s knowledge, false or misleading in the material particular
concerned; and
(b) setting out or referring to the
material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
268CO
Use of electronic equipment in exercising monitoring powers
In order to exercise monitoring powers,
an authorised officer or a person assisting may operate electronic equipment on
the premises if he or she reasonably believes that this can be done without
damaging the equipment or data recorded on the equipment.
Note: Compensation may be payable in certain
circumstances if the equipment or data is damaged: see section 268CY.
268CP
Use of electronic equipment by experts
(1) This section applies if the authorised
officer or a person assisting reasonably believes that:
(a) there is on the premises
information belonging to the education provider concerned:
(i) that is relevant to a
visa monitoring purpose; and
(ii) that might be
accessible by operating electronic equipment that is on the premises; and
(b) expert assistance is required to
operate the equipment; and
(c) if he or she does not take action
under subsection (2), the information might be destroyed, altered or
otherwise interfered with.
(2) The authorised officer or person
assisting may do whatever is necessary to secure the equipment.
(3) Before doing so, the authorised officer
or person assisting must give notice to the occupier of the premises of:
(a) his or her intention to secure
equipment; and
(b) the fact that the equipment may be
secured for up to 24 hours.
(4) The equipment may only be secured until
the earlier of:
(a) 24 hours later; or
(b) the equipment being operated by
the expert.
268CQ
Extension of period
(1) If an authorised officer or a person
assisting reasonably believes that the expert assistance will not be available
within 24 hours, he or she may apply to a magistrate or tribunal member for an
extension of the period.
(2) The authorised officer or a person
assisting must give notice to the occupier of the premises of his or her
intention to apply for an extension. The occupier is entitled to be heard in
relation to that application.
(3) The provisions of this Subdivision
relating to the issue of monitoring warrants apply, with such modifications as
are necessary, to the issue of an extension.
268CR
Powers without warrant in emergency situations
(1) This section applies when an authorised
officer is on premises under section 268CA if the officer reasonably
suspects that:
(a) a thing relevant to an offence
against this Act or the regulations, the Crimes Act 1914 or the Criminal
Code is on the premises; and
(b) it is necessary to exercise a
power under subsection (2) in order to prevent the thing from being
concealed, lost or destroyed; and
(c) it is necessary to exercise the
power without the authority of a monitoring warrant because the circumstances
are so serious and urgent.
(2) The authorised officer may:
(a) search the premises, and any
receptacle on the premises, for the thing; and
(b) seize the thing if he or she finds
it there; and
(c) exercise the powers mentioned in
subsections 268CI(2) and (3) in relation to the thing.
268CS
Retaining seized things
(1) This section applies to an authorised
officer when one of the following happens in respect of a thing seized under
section 268CR:
(a) the reason for the thing’s seizure
no longer exists or it is decided that the thing is not to be used in evidence;
or
(b) the period of 60 days after the
thing’s seizure ends.
(2) The authorised officer must take
reasonable steps to return the thing to the person from whom it was seized or
to the owner if that person is not entitled to possess it.
(3) However, the authorised officer does not
have to take those steps if:
(a) in a paragraph (1)(b) case:
(i) proceedings in respect
of which the thing might afford evidence have been instituted before the end of
the 60 days and have not been completed (including an appeal to a court in
relation to those proceedings); or
(ii) the authorised officer
may retain the thing because of an order under section 268CU; or
(b) in any case—the authorised officer
is otherwise authorised (by a law, or an order of a court or a tribunal, of the
Commonwealth or a State) to retain, destroy or dispose of the thing; or
(c) the thing is forfeited or
forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
268CT
Authorised officer may apply for a thing to be retained for a further period
(1) This section applies if an authorised
officer has seized a thing under section 268CR and proceedings in respect
of which the thing might afford evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in
an order of a magistrate or tribunal member under section 268CU.
(2) The authorised officer may apply to a
magistrate or tribunal member for an order that the officer may retain the
thing for a further period.
(3) Before making the application, the
authorised officer must:
(a) take reasonable steps to discover
which persons’ interests would be affected by the retention of the thing; and
(b) if it is practicable to do so,
notify each person who the officer believes to be such a person of the proposed
application.
268CU
Magistrate or tribunal member may order that thing be retained
(1) The magistrate or tribunal member may
order that the authorised officer who made an application under section 268CT
may retain the thing if the magistrate or tribunal member is satisfied that it
is necessary for the officer to do so:
(a) for the purposes of an
investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence
to be secured for the purposes of a prosecution.
(2) The order must specify the period for
which the officer may retain the thing.
268CV
Occupier to provide authorised officer with all facilities and assistance
(1) The occupier of the premises to which a
monitoring warrant relates must provide the authorised officer executing the
warrant and any person assisting that officer with all reasonable facilities
and assistance for the effective exercise of their powers.
(2) A person is guilty of an offence if the
person contravenes subsection (1).
Maximum penalty: 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. It must contain a recent photograph of the authorised officer.
(2) A person is guilty of 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.
Maximum 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 is not guilty of the
offence if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal
Code.
(5) An authorised officer must carry an
identity card at all times when exercising powers under this Subdivision.
268CZB
Authorised officer must produce identity card on request
An authorised officer is not entitled to
exercise any powers under this Subdivision in relation to premises if:
(a) the occupier of the premises
requests the authorised officer to show his or her identity card to the
occupier; and
(b) the authorised officer fails to
comply with the request.
268CZC
Officer may apply for warrants by telephone etc.
(1) An authorised officer may apply to a
magistrate or tribunal member for a warrant under section 268CE by
telephone, fax or other electronic means if the officer thinks it necessary to
do so because of urgent circumstances.
(2) The magistrate or tribunal member may
require communication by voice to the extent that it is practicable in the
circumstances.
(3) Before making the application, the
authorised officer must prepare an information that sets out the grounds for
seeking the warrant.
(4) However, the officer may make the
application before the information has been sworn or affirmed, if necessary.
268CZD
Magistrate or tribunal member may grant warrant by telephone etc.
(1) Before issuing the warrant the magistrate
or tribunal member must:
(a) consider the information prepared
under subsection 268CZC(3); and
(b) receive any further information
that the magistrate or tribunal member may require about the grounds on which
the warrant is being sought.
(2) The magistrate or tribunal member may
issue the warrant if the magistrate or tribunal member is satisfied:
(a) that it is reasonably necessary
that one or more authorised officers have access to the premises for a visa
monitoring purpose; and
(b) that there are reasonable grounds
for issuing the warrant by telephone, fax or other electronic means.
268CZE
Procedure for issuing warrant by telephone etc.
(1) If the magistrate or tribunal member
issues a monitoring warrant under section 268CZD, the magistrate or
tribunal member must complete and sign a warrant that is the same as the
monitoring warrant that the magistrate or tribunal member would have issued if
the application had been made under section 268CD.
(2) The
magistrate or tribunal member must also:
(a) inform
the authorised officer of:
(i) the terms of the
warrant; and
(ii) the day and time when
it was signed; and
(iii) the time at which it
ceases to have effect (which must be no later than 48 hours after it is
signed); and
(b) record on the warrant the reasons
for issuing it.
(3) The authorised officer must:
(a) complete a form of warrant in the
terms given to the authorised officer by the magistrate or tribunal member; and
(b) write on it the magistrate’s or
tribunal member’s name and the day and time when the warrant was signed.
268CZF
Procedure after telephone warrant ceases or is executed
(1) An authorised officer who completes a
form of warrant under section 268CZE must send the magistrate or tribunal
member who signed the monitoring warrant:
(a) the form of warrant completed by
the authorised officer; and
(b) the information duly sworn or
affirmed in connection with the warrant.
(2) The form of warrant and information must
be sent by the end of the day after the earlier of:
(a) the day on which the warrant
ceases to have effect; or
(b) the day on which the warrant is
executed.
(3) The magistrate or tribunal member must:
(a) attach the monitoring warrant
signed by the magistrate or tribunal member under section 268CZE to the
form of warrant and information; and
(b) deal with the documents in the
same way that the magistrate or tribunal member would have dealt with them if
the application for the warrant had been made under section 268CD.
268CZG
Form of warrant authorises exercise of power
The form of warrant completed under
section 268CZE is authority for any exercise of a power that the
monitoring warrant issued under section 268CZD is authority for, if the
form of warrant is in accordance with the terms of the monitoring warrant.
268CZH
Court to assume that exercise of power not authorised by telephone etc. warrant
A court must assume (unless the contrary
is proved) that an exercise of power was not authorised by a monitoring warrant
if the monitoring warrant signed by the magistrate or tribunal member under
section 268CZE is not produced in evidence.
Division 15—General
269
Securities
(1) An authorized officer may 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.
(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, 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, 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;
(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;
(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 evidence that the document is such a report;
(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;
(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;
(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;
(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;
(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
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.
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) or the Migration Review Tribunal:
(i) under this Act or in
relation to an offence against this Act; or
(ii) in
relation to a deportation order; or
(b) proceedings in the Refugee Review
Tribunal under this Act; or
(c) proceedings in the Administrative
Appeals Tribunal under this Act.
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 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 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 may give the first‑mentioned person a document under subsection (3)
relating to the other person.
(3) A document
for the purposes of subsection (2):
(a) shall
be in the prescribed form;
(b) shall state, to the best of the
Secretary’s knowledge, the name and nationality of the person concerned; and
(c) may include such other information
as the Secretary thinks appropriate.
Part 3—Migration agents and immigration assistance
Division 1—Preliminary
275
Interpretation
In this Part, unless the contrary
intention appears:
cancellation review applicant means an
applicant for:
(a) review of a decision to cancel a
visa held by the applicant; or
(b) revocation under section 137L
of the cancellation of a visa held by the applicant; or
(c) review of a decision under that
section not to revoke such a cancellation.
cancellation review application, in relation
to a cancellation review applicant, means the application by the applicant.
high visa refusal rate, in relation to a visa
of a particular class, has the meaning given by section 306AC.
Institute means the Migration Institute of
Australia Limited (A.C.N. 003 409 390).
lawyer means:
(a) a barrister; or
(b) a solicitor; or
(c) a barrister and solicitor; or
(d) a legal practitioner;
of the High Court or of the Supreme Court of a State or
Territory.
Migration Agents Registration Authority
means:
(a) if an appointment of the Institute
is in force under section 315—the Institute; or
(b) otherwise—the Minister.
migration procedure means the law, and
administrative practice, relating to immigration.
official means:
(a) a person appointed or engaged
under the Public Service Act 1999; or
(c) a member of the public service of
a State or Territory; or
(d) a member of the staff of a
Parliamentarian.
parliamentarian means:
(a) a Senator; or
(b) a Member of the House of
Representatives; or
(c) a member of the Parliament of a
State; or
(d) a member of the Legislative Assembly
of a Territory.
Register means the Register of Migration
Agents kept under section 287.
registered migration agent means an
individual registered as a migration agent under section 286.
registration application means an application
to be registered as a migration agent.
registration application fee means charge
imposed by section 4 of the Migration Agents Registration Application
Charge Act 1997 on a registration application.
registration status charge means charge
imposed by section 10 of the Migration Agents Registration Application
Charge Act 1997.
review authority means:
(a) the Migration Review Tribunal; or
(b) the Refugee Review Tribunal.
276
Immigration assistance
(1) For the purposes of this Part, a person
gives immigration assistance if the person uses, or purports to
use, knowledge of, or experience in, migration procedure to assist a visa
applicant or cancellation review applicant by:
(a) preparing, or helping to prepare,
the visa application or cancellation review application; or
(b) advising the visa applicant or
cancellation review applicant about the visa application or cancellation review
application; or
(c) preparing for proceedings before a
court or review authority in relation to the visa application or cancellation
review application; or
(d) representing the visa applicant or
cancellation review applicant in proceedings before a court or review authority
in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person
also gives immigration assistance if the person uses, or purports
to use, knowledge of, or experience in, migration procedure to assist another
person by:
(a) preparing, or helping to prepare,
a document indicating that the other person nominates or sponsors a visa
applicant for the purposes of the regulations; or
(b) advising the other person about
nominating or sponsoring a visa applicant for the purposes of the regulations;
or
(c) representing the other person in
proceedings before a court or review authority that relate to the visa for
which the other person was nominating or sponsoring a visa applicant (or
seeking to nominate or sponsor a visa applicant) for the purposes of the
regulations.
(2A) For the purposes of this Part, a person
also gives immigration assistance if the person uses, or purports
to use, knowledge of, or experience in, migration procedure to assist another
person by:
(a) preparing, or helping to prepare,
a request to the Minister to exercise his or her power under section 351,
391, 417, 454 or 501J in respect of a decision (whether or not the decision
relates to the other person); or
(aa) preparing, or helping to prepare,
a request to the Minister to exercise a power under section 195A, 197AB or
197AD (whether or not the exercise of the power would relate to the other
person); or
(b) advising the other person about
making a request referred to in paragraph (a) or (aa).
(3) Despite subsections (1), (2) and
(2A), a person does not give immigration assistance if he or she merely:
(a) does clerical work to prepare (or
help prepare) an application or other document; or
(b) provides translation or
interpretation services to help prepare an application or other document; or
(c) advises another person that the
other person must apply for a visa; or
(d) passes on to another person
information produced by a third person, without giving substantial comment on
or explanation of the information.
(4) A person also does not give immigration
assistance in the circumstances prescribed by the regulations.
277
Immigration legal assistance
(1) For the purposes of this Part, a lawyer
gives immigration legal assistance if the lawyer:
(a) acts for a visa applicant or
cancellation review applicant in preparing for proceedings before a court in
relation to the visa application or cancellation review application; or
(b) represents or otherwise acts for a
visa applicant or cancellation review applicant in proceedings before a court
in relation to the visa application or cancellation review application; or
(c) gives advice to a visa applicant
or cancellation review applicant in relation to the visa application or
cancellation review application that is not advice for the purpose of any of
the following:
(i) the preparation or
lodging of the visa application or cancellation review application;
(ii) proceedings before a
review authority in relation to the visa application or cancellation review
application;
(iii) the review by a review
authority of a decision relating to the visa application or cancellation review
application.
(2) For the purposes of this Part, a lawyer
also gives immigration legal assistance if the lawyer:
(a) represents or otherwise acts for a
person in proceedings (or in preparing for proceedings) before a court that
relate to the visa for which the person was nominating or sponsoring a visa
applicant (or seeking to nominate or sponsor a visa applicant) for the purposes
of the regulations; or
(b) gives advice to a person about
nominating or sponsoring a visa applicant for the purposes of the regulations
(except advice described in subsection (3)).
(3) A lawyer does not give immigration legal
assistance in giving advice to a person about nominating or sponsoring a visa
applicant for the purposes of the regulations if the advice is for the purpose
of:
(a) the preparation or lodging of an
approved form putting forward the name of a visa applicant; or
(b) the preparation or lodging of an
approved form undertaking sponsorship; or
(c) proceedings before a review
authority that relate to the visa for which the person was nominating or
sponsoring a visa applicant (or seeking to nominate or sponsor a visa
applicant); or
(d) the review by a review authority
of a decision relating to the visa for which the person was nominating or
sponsoring the visa applicant (or seeking to nominate or sponsor the visa
applicant).
(4) A lawyer does not give immigration legal
assistance in giving advice to another person that is for the purpose of the
preparation or making of a request to the Minister to exercise his or her power
under section 351, 391, 417, 454 or 501J in respect of a decision (whether
or not the decision relates to the other person).
(5) A lawyer does not give immigration legal
assistance in giving advice to another person that is for the purpose of the
preparation or making of a request to the Minister to exercise a power under
section 195A, 197AB or 197AD (whether or not the exercise of the power
would relate to the other person).
278
Relation by employment
(1) For the purposes of this Part, an
individual is related by employment to another individual if:
(a) one individual is an employee of
the other; or
(b) they are executive officers of the
same corporation; or
(c) they are members of the same
partnership; or
(d) one individual is an employee of a
corporation and the other is:
(i) an employee of the
corporation; or
(ii) an executive officer
of the corporation; or
(e) one individual is an employee of a
partnership and the other is:
(i) an employee of the
partnership; or
(ii) a member of the
partnership.
Regulations
(2) For the purposes of this Part, an
individual is also related by employment to another individual in
any other prescribed circumstance.
Expanded meaning of employee
(3) In this section:
employee includes a person engaged as a
consultant or as an independent contractor.
279
Part VIIC of the Crimes Act 1914 to apply to this Part
(1) Despite paragraph 85ZZH(d) of the Crimes
Act 1914, Part VIIC of that Act applies to this Part.
(2) Division 3 of Part VIIC of the Crimes
Act 1914 applies in relation to the Migration Agents Registration Authority
as if it were a Commonwealth authority for the purposes of that Division.
Division 2—Restrictions on giving of immigration assistance and making
of immigration representations
280
Restrictions on giving of immigration assistance
(1) Subject to this section, a person who is
not a registered migration agent must not give immigration assistance.
Penalty: 60 penalty units.
Note: See also paragraph 504(1)(ja) (which deals
with the payment of penalties as an alternative to prosecution).
(1A) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) This section does not prohibit a
parliamentarian from giving immigration assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(3) This section does not prohibit a lawyer
from giving immigration legal assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(4) This section does not prohibit an
official from giving immigration assistance in the course of his or her duties
as an official.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(5) This section does not prevent an
individual from giving immigration assistance of a kind covered by subsection
276(2A) if the assistance is not given for a fee or other reward.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(5A) This section does not prevent a close
family member of a person from giving immigration assistance to the person.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(5B) This section does not prevent a person
nominating a visa applicant for the purposes of the regulations from giving
immigration assistance to the applicant.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(5C) This section does not prevent a person
sponsoring a visa applicant for the purposes of the regulations from giving
immigration assistance to the applicant.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(6) This section does not prohibit an
individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission;
or
(b) a member of a consular post; or
(c) a member of an office of an
international organisation.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(7) In this
section:
close family member has the meaning given by
the regulations.
member of a consular post means a person who
is a member of a consular post for the purposes of the Consular Privileges
and Immunities Act 1972.
member of a diplomatic mission means a person
who is a member of a mission for the purposes of the Diplomatic Privileges
and Immunities Act 1967.
member of an office of an international organisation
means the holder of an office in, an employee of, or a voluntary worker for, a
body that, under section 3 of the International Organisations
(Privileges and Immunities) Act 1963, is an international organisation
within the meaning of that Act.
281
Restriction on charging fees for immigration assistance
(1) Subject to subsection (3), a person
who is not a registered migration agent must not ask for or receive any fee or
other reward for giving immigration assistance.
Penalty: Imprisonment for 10 years.
(2) Subject to subsection (3), a person
must not ask for or receive any fee or other reward for the giving of
immigration assistance by another person who is not a registered migration
agent.
Penalty: Imprisonment for 10 years.
(3) This section does not prohibit:
(a) a lawyer from asking for or
receiving a fee for giving immigration legal assistance; or
(b) a person from asking for or
receiving a fee for the giving of immigration legal assistance by a lawyer.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(4) A person is not entitled to sue for,
recover or set off any fee or other reward that the person must not ask for or
receive because of subsection (1).
282
Restriction on charging fees for immigration representations
(1) A person
who is not a registered migration agent must not ask for or receive any fee or
other reward for making immigration representations.
Penalty: Imprisonment for 10 years.
(2) A person must not ask for or receive any
fee or other reward for the making of immigration representations by another
person who is not a registered migration agent.
Penalty: Imprisonment for 10 years.
(3) A person is not entitled to sue for,
recover or set off any fee or other reward that the person must not ask for or
receive because of subsection (1).
(4) For the purposes of this section, a
person makes immigration representations if he or she makes
representations to, or otherwise communicates with, the Minister, a member of
the Minister’s staff or the Department:
(a) on behalf of a visa applicant
about the application for the visa; or
(b) on behalf of a cancellation review
applicant about the cancellation review application; or
(c) on behalf of a person nominating
(or seeking to nominate) a visa applicant for the purposes of the regulations,
about the nomination; or
(d) on behalf of a person sponsoring
(or seeking to sponsor) a visa applicant for the purposes of the regulations,
about the sponsorship; or
(e) on behalf of a person who has made
(or is proposing to make) a request to the Minister to exercise his or her
power under section 351, 391, 417, 454 or 501J in respect of a decision
(whether or not the decision relates to that person), about the request; or
(f) on behalf of a person who has
made (or is proposing to make) a request to the Minister to exercise a power
under section 195A, 197AB or 197AD (whether or not the exercise of the
power would relate to the other person), about the request.
(5) A person does not make immigration
representations in the circumstances prescribed by the regulations.
283
False representation that a person is a registered migration agent
(1) A person who is not a registered
migration agent must not directly or indirectly represent that he or she is
such an agent.
(2) A person must not directly or indirectly
represent that another person who is not a registered migration agent is such
an agent.
Penalty: Imprisonment for 2 years.
284
Restriction on self‑advertising of the giving of immigration assistance
(1) Subject to this section, a person who is
not a registered migration agent must not advertise that he or she gives
immigration assistance.
Penalty: Imprisonment for 2 years.
(2) This section does not prohibit a
parliamentarian from advertising that he or she gives immigration assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(3) This section does not prohibit a lawyer
from advertising that he or she gives immigration legal assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(4) This section does not prohibit an
official from advertising that he or she gives immigration assistance in the
course of acting as an official.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
285
Restriction on other advertising of immigration assistance
(1) Subject to this section, a person must
not directly or indirectly advertise that another person who is not a
registered migration agent gives immigration assistance.
Penalty: Imprisonment for 2 years.
(2) This section does not prohibit a person
from advertising that another person who is a parliamentarian gives immigration
assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(3) This section does not prohibit a person
from advertising that another person who is a lawyer gives immigration legal
assistance.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(4) This section does not prohibit a person
from advertising that another person who is an official gives immigration
assistance in the course of the official acting as an official.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
Division 3—Registration of migration agents
286
Individuals may be registered as migration agents
Individuals may be registered as
migration agents in accordance with this Part.
287
Register of Migration Agents
(1) The Migration Agents Registration
Authority must keep a register, to be known as the Register of Migration Agents,
listing individuals who are registered as migration agents.
(2) The Register is to show in respect of
each registered migration agent:
(a) the agent’s full name; and
(b) any business names of the agent or
the agent’s employer; and
(c) a business address for the agent;
and
(d) a telephone number for contacting
the agent; and
(e) the date on which the agent was
registered most recently; and
(g) particulars of any suspension of
the agent’s registration; and
(h) particulars of any caution given
to the agent; and
(i) particulars of any other
prescribed matter.
(3) The Migration Agents Registration
Authority must keep records to show:
(a) what was in the Register from time
to time; and
(b) particulars of any cancellation or
suspension of a registered migration agent’s registration or of any caution
given to such an agent.
(3A) The Authority may publish, in the
prescribed way, a list of the names of former registered migration agents,
their former migration agent registration numbers and the date they ceased to
be registered. The Authority must remove a person’s details from the list at
the end of the prescribed period.
(4) The Migration Agents Registration
Authority must make the Register available, in a suitable form and at
reasonable times, for inspection by any person.
Removal of disciplinary details
(5) The Authority must remove from the
Register the following details:
(a) particulars of any suspension of a
registered migration agent’s registration (if the suspension is no longer in
effect);
(b) particulars of any caution given
to such an agent (if the caution is no longer in effect).
Time for removal
(6) The Authority must remove the details
within the period worked out in accordance with the regulations.
(7) The regulations may prescribe different
periods in relation to details about suspensions or cautions.
288
Application for registration
(1) An individual may apply to the Migration
Agents Registration Authority to be registered as a registered migration agent.
Publishing requirement
(2) The individual must satisfy 1 of 2
publishing options set out in section 288A (unless he or she has been
registered at some time in the 12 months immediately before making the
application).
Form of application
(3) A registration application is to be in a
form approved in writing by the Authority and contain such information relevant
to the application as is required by the form.
Note: The applicant may be required to make a
statutory declaration, or to answer questions, in relation to the application:
see section 288B.
Time of application
(4) The day on which a registration
application is taken to have been made is the day worked out in accordance with
the regulations.
Registration application fee
(5) The Authority must not consider a
registration application unless the applicant has paid the registration
application fee (if any) on the application.
Evidence of publication
(6) If the applicant is required under this
section to satisfy 1 of 2 publishing options, the Authority must not consider
the application unless the applicant has:
(a) satisfied one of those options;
and
(b) given the Authority evidence of
the publication concerned.
Proceedings finalised about previous registration
(6A) If:
(a) the applicant has been registered
at some time before making the application; and
(b) the Authority made a decision to
suspend or cancel the applicant’s registration; and
(c) the applicant made an application
(the review application) for review of the decision under the Administrative
Appeals Tribunal Act 1975 or for judicial review of the decision;
then the Authority must not consider the registration
application unless it is satisfied that all proceedings (including any appeals)
resulting from the review application have been finalised.
Withdrawal of application
(7) The applicant may withdraw an application
by giving notice in writing to the Authority. However, the applicant is not
entitled to a refund of the registration application fee paid in relation to
the application.
288A
Publishing requirement
(1) For the purposes of subsection 288(2),
this section sets out an individual’s 2 publishing options.
Individual publication
(2) The first option is for the individual to
publish in the prescribed way a notice:
(a) stating his or her intention to
apply for registration; and
(b) stating that anyone may give the
Migration Agents Registration Authority a written objection to his or her
registration within the period of 30 days after publication of the notice (or
30 days after the day on which the notice is last published, if it must be
published more than once).
Joint publication
(3) The second option is for the individual
and one or more other individuals, who are all employees of the same employer
and who all intend to apply for registration, to publish in the prescribed way
a single notice:
(a) stating their intention to apply
for registration; and
(b) stating that anyone may give the
Migration Agents Registration Authority a written objection to registration of
any one or more of them within the period of 30 days after publication of the
notice (or 30 days after the day on which the notice is last published, if it
must be published more than once).
288B
Requiring applicants to make statutory declarations or to answer questions
(1) The Migration Agents Registration
Authority may require an applicant who, on the day the application is taken to
have been made, is not a registered migration agent:
(a) to make a statutory declaration in
relation to information or documents provided by the applicant in relation to
the application; or
(b) to appear before one or more
individuals specified by the Authority and to answer questions in relation to
the application.
(2) If an applicant is required under this
section to make a statutory declaration or to answer questions, the Authority
must not further consider the application until the applicant does so.
289
Registration
(1) The Migration Agents Registration
Authority must register an applicant by entering his or her name in the
Register, unless this Part prohibits registration of the applicant.
Note: If the Migration Agents Registration Authority
is considering refusing a registration application, it must give the applicant
a chance to make a further submission supporting the application. See sections 309
and 310.
(2) The Migration Agents Registration
Authority must do so as soon as possible.
(3) However, if the applicant was required
under section 288 to satisfy 1 of 2 publishing options:
(a) the Authority must not register
the applicant before the end of the time for objections that was specified in
the notice concerned; and
(b) the Authority must consider any
objection received within that time when deciding whether to register the
applicant.
(4) Subject to subsection 300(6), if the
Migration Agents Registration Authority enters in the Register the name of an
applicant who is already registered, the later registration takes effect at the
end of the existing registration (unless the existing registration is cancelled
before it would end under section 299).
289A
Applicant must not be registered if does not satisfy registration requirements
An applicant:
(a) who has never been registered; or
(b) who is applying to be registered
more than 12 months after the end of his or her previous registration;
must not be registered unless the Migration Agents
Registration Authority is satisfied that he or she:
(c) has completed a prescribed course
within the prescribed period and has passed a prescribed exam within the
prescribed period; or
(d) holds the prescribed qualifications.
290
Applicant must not be registered if not a person of integrity or not fit and
proper
(1) An applicant must not be registered if
the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and
proper person to give immigration assistance; or
(b) the applicant is not a person of
integrity; or
(c) the applicant is related by
employment to an individual who is not a person of integrity and the applicant
should not be registered because of that relationship.
(2) In
considering whether it is satisfied that the applicant is not fit and proper or
not a person of integrity, the Migration Agents Registration Authority must
take into account:
(a) the extent of the applicant’s
knowledge of migration procedure; and
(c) any conviction of the applicant of
a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper
person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is
spent under Part VIIC of the Crimes Act 1914); and
(d) any criminal proceedings that the
applicant is the subject of and that the Authority considers relevant to the
application; and
(e) any inquiry or investigation that
the applicant is or has been the subject of and that the Authority considers
relevant to the application; and
(f) any disciplinary action that is
being taken, or has been taken, against the applicant that the Authority
considers relevant to the application; and
(g) any bankruptcy (present or past)
of the applicant; and
(h) any other matter relevant to the
applicant’s fitness to give immigration assistance.
(3) In considering whether it is satisfied
that an individual to whom the applicant is related by employment is not a
person of integrity, the Migration Agents Registration Authority must take into
account each of the following matters, so far as the Authority considers it
relevant to the question whether the individual is not a person of integrity:
(a) any conviction of the individual
of a criminal offence (except a conviction that is spent under Part VIIC
of the Crimes Act 1914);
(b) any criminal proceedings that the
individual is the subject of;
(c) any inquiry or investigation that
the individual is or has been the subject of;
(d) any disciplinary action that is
being taken, or has been taken, against the individual;
(e) any bankruptcy (present or past)
of the individual.
(4) To avoid doubt, this section applies to
all applicants (not just first time applicants).
290A
Applicant for repeat registration must not be registered if he or she has not
done continuing professional development
If the applicant has been registered at
some time in the 12 months before making the application, he or she must not be
registered if the Migration Agents Registration Authority is satisfied that the
applicant has not met, within the prescribed period, the requirements
prescribed by the regulations for continuing professional development of
registered migration agents.
290B
Applicant must not be registered if any unpaid registration status charge
An applicant must not be registered if
any registration status charge payable by him or her remains unpaid after the
time when it becomes due for payment.
291
Applicant must not be registered if registration refused in past year
(1) An applicant must not be registered if he
or she has been refused registration as a migration agent within 12 months
before his or her application.
(2) To avoid doubt, this section applies to
all applicants (not just first time applicants).
291A
Applicant must not be registered if suspension would be in effect
If:
(a) an applicant has been registered
(the previous registration) at some time before making the
application; and
(b) the Migration Agents Registration
Authority decided to suspend the previous registration (whether or not that
decision was stayed); and
(c) the previous registration ended on
or after the suspension decision;
then the applicant must not be registered during a period
in which the previous registration would have been suspended had the previous
registration not already ended.
Example 1: A registered migration agent’s registration is
suspended for a period. The agent is deregistered under section 302 so the
suspension of the registration ends. The agent cannot be re‑registered
until the suspension period ends.
Example 2: The Migration Agents Registration Authority
suspends a registered migration agent’s registration. The agent applies for
review of the decision and a stay order is made in relation to the decision.
The agent continues to practise, while the stay order is in force, until the
agent’s registration ends. Subsection 288(6A) prevents the agent from being re‑registered
until the review proceedings are finalised. The agent cannot be re‑registered
if the suspension decision is affirmed on review and the suspension would not
have ended (had the registration continued).
Example 3: Under section 300, a registered migration
agent’s registration is continued after the expiry day of the agent’s
registration. The Migration Agents Registration Authority makes a decision to
suspend the agent’s registration until the agent complies with a condition, and
so the registration ends because of subsection 300(4). The agent cannot be re‑registered
until the agent complies with the condition.
292
Applicant must not be registered if registration cancelled in past 5 years
An applicant whose registration has been
cancelled under section 303, 306AG or 306AGAC must not be registered
within 5 years of the cancellation.
292A
Applicant must not be registered if any barring period has not ended
An applicant must not be registered if:
(a) the Migration Agents Registration
Authority has made a decision under subsection 311A(1) or 311L(1) to bar him or
her from being a registered migration agent for a particular period; and
(b) the period has not ended.
292B
Applicant must not be registered unless he or she holds appropriate
professional indemnity insurance
(1) An applicant must not be registered
unless the Migration Agents Registration Authority is satisfied that he or she
has professional indemnity insurance of a kind prescribed by the regulations.
(2) To avoid doubt, this section applies to
all applicants (not just first time applicants).
293
Applicant under 18 must not be registered
An applicant must not be registered if
he or she is under 18.
294
Applicant must not be registered if not an Australian citizen, permanent
resident or New Zealander with special visa
(1) An applicant must not be registered
unless he or she is:
(a) an Australian citizen; or
(b) an Australian permanent resident
(within the meaning of the regulations); or
(c) a New Zealand citizen who holds a
special category visa.
(2) To avoid doubt, this section applies to
all applicants (not just first time applicants).
295
Notice of refusal of application
If the Migration Agents Registration
Authority decides not to register an applicant, the Authority must give the
applicant written notice of the decision and of the reasons for it.
Note: The applicant may apply to the Administrative
Appeals Tribunal for review of the decision. See section 306 of this Act.
(Section 27A of the Administrative Appeals Tribunal Act 1975
requires that people whose interests are affected by the Authority’s decision
be given notice of their rights to seek review of the decision.)
299
Period of registration
(1) Subject to sections 300, 302, 303,
306AG and 306AGAC and subsection (3), the registration of a registered
migration agent lasts for 12 months after the registration.
(3) If the registration of a registered
migration agent is suspended for a period, the current period of the agent’s
registration is extended by a period equal to that period of suspension.
300
Automatic continuation of registration
When agent’s registration is automatically continued
(1) Subsection (4) applies to continue a
registered migration agent’s registration beyond the last day (the expiry
day) of the agent’s registration if, before the end of the expiry day:
(a) the agent made a registration
application; and
(b) the agent paid the registration
application fee (if any) in respect of the application; and
(c) the Migration Agents Registration
Authority had not decided the application.
Exception—suspension
(2) However, subsection (4) does not
apply to continue the agent’s registration if, before the end of the expiry
day, the Authority made a decision to suspend the agent’s registration, unless:
(a) the suspension had been completed
before the end of the expiry day; or
(b) there was a decision (other than a
stay order) of the Administrative Appeals Tribunal or a court in force,
immediately before the end of the expiry day, to the effect that the agent’s
registration is not suspended or cancelled.
Exception—cancellation
(3) Subsection (4) also does not apply
to continue the agent’s registration if, before the end of the expiry day, the
Authority made a decision to cancel the agent’s registration, unless:
(a) there was a decision (other than a
stay order) of the Administrative Appeals Tribunal or a court in force,
immediately before the end of the expiry day, to the effect that the agent’s
registration is not suspended or cancelled; or
(b) there was a decision of the
Administrative Appeals Tribunal or a court in force to the effect that the
agent’s registration is suspended, and the suspension had been completed before
the end of the expiry day.
Period of continuation of registration
(4) The agent’s registration is taken to
continue after the expiry day until the earliest of the following:
(a) the Authority decides the
application;
(b) the Authority decides to suspend
the agent’s registration;
(c) the Authority decides to cancel
the agent’s registration;
(d) the end of the period of 10 months
beginning on the day after the expiry day.
Application granted if no decision within a certain
period
(5) If, before the end of the period of 10
months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration
application; and
(b) decided to suspend the agent’s
registration; and
(c) decided to cancel the agent’s
registration;
then the application is taken to have been granted at the
end of that period.
When registration takes effect
(6) If the Authority grants the registration
application, or the registration application is taken to have been granted
under subsection (5), the registration is treated as having taken effect
at the end of the expiry day.
Example: An agent’s registration is due to end on 31 October
(the expiry day). On 20 October the agent applies to be registered again.
The Authority has not decided the application by the end of 31 October.
The agent’s registration continues
automatically past 31 October until the Authority decides the application.
On 15 November the Authority grants
the application. The new 12 month registration is treated as having taken
effect at the end of 31 October.
When Authority makes decision
(7) For the purposes of this section, the
Authority is taken to have made a decision even if the decision is later
stayed.
301
Migration Agents Registration Authority must warn of expiry
At least 30 days before the period for
which a registered migration agent is registered will end under section 299,
the Migration Agents Registration Authority must give the agent a written
notice stating when the period will end.
302
Automatic deregistration
(1) The Migration Agents Registration
Authority must deregister a registered migration agent by removing his or her
name from the Register if:
(a) he or she requests the Authority,
in writing, to do so; or
(d) he or she dies.
303
Disciplining registered migration agents
(1) The
Migration Agents Registration Authority may:
(a) cancel the registration of a
registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration;
or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent’s application for
registration was known by the agent to be false or misleading in a material
particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of
integrity or is otherwise not a fit and proper person to give immigration
assistance; or
(g) an individual related by
employment to the agent is not a person of integrity; or
(h) the agent has not complied with
the Code of Conduct prescribed under section 314.
Note 1: The Authority is required to caution a
registered migration agent or cancel or suspend a registered migration agent’s
registration in certain circumstances: see Division 3AA.
Note 2: If the Authority is considering making a decision
under this section, it must invite the registered migration agent to make a
submission: see sections 309 and 310.
Unpaid registration status charge
(2) The Authority may also suspend the
registration of a registered migration agent if any registration status charge
payable by him or her remains unpaid after the time when it becomes due for
payment.
304
Period of suspension
(1) If the Migration Agents Registration
Authority suspends the registration of a registered migration agent under
section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not
more than 5 years; or
(b) set a condition or conditions for
the lifting of the suspension.
(2) If 2 or more conditions are set under paragraph (1)(b),
one of them may be that at least a set period of suspension has ended.
304A
Conditions for lifting cautions
The Migration Agents Registration
Authority may set one or more conditions for the lifting of a caution it gives
to a registered migration agent.
Note: Particulars of cautions are shown on the
Register: see section 287.
305
Notice of disciplinary decision
Notice to agent
(1) The Migration Agents Registration
Authority must give a registered migration agent written notice of a decision
made under section 303 in relation to the agent.
(2) The notice must set out the reasons for
the decision.
When decision takes effect
(3) The decision takes effect at the time the
agent is given written notice of it.
Note: Section 332H sets out when the agent is
taken to have been given the notice.
305A
Making disciplinary details publicly available
(1) If a registered migration agent is given
notice of a decision under section 303, then the Migration Agents
Registration Authority:
(a) must as soon as possible make
available in the prescribed way a statement that sets out the decision and
specifies the grounds for the decision; and
(b) may prepare a statement about the
decision and make it available to one or more groups of persons, or to one or
more persons, in any way the Authority thinks fit.
This subsection applies even if a stay order is made in
relation to the decision.
Content of statement
(3) A statement under this section need not
set out the findings on material questions of fact and need not refer to the
evidence or other material on which those findings were based.
Protection from civil proceedings
(4) No action or other proceeding for damages
lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
305B
Providing disciplinary details to clients
(1) If the Migration Agents Registration
Authority makes a decision under section 303 in relation to a registered
migration agent, the Authority or the Secretary may inform one or more of the
clients of the agent about any one or more of the following:
(a) the making of the decision;
(b) whether or not the agent has
applied for review of the decision;
(c) the status of any such review.
(3) In this section:
client has the meaning given by section 306C.
305C
Requiring registered migration agents to give information or documents
(1) This section applies if the Migration
Agents Registration Authority is considering:
(a) refusing a registration
application from a registered migration agent; or
(b) making a decision under section 303
to cancel or suspend such an agent’s registration or to caution such an agent.
(2) The Authority may, by written notice
given to the agent, require him or her to provide the Authority with prescribed
information or prescribed documents within the specified period and in the
specified manner.
(3) A period specified in a notice under this
section must end at least 14 days after the notice was given.
Note: Section 332H sets out when the agent is
taken to have been given the notice.
Offence
(4) A person commits an offence if:
(a) the person is subject to a
requirement under this section; and
(b) the person contravenes the
requirement.
Penalty: 60 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Self‑incrimination
(6) A person is not excused from giving
information or providing a document on the ground that the information or
provision of the document may tend to incriminate the person.
(7) However:
(a) any information or document
provided in response to a requirement under subsection (2); and
(b) any information or thing
(including any document) obtained as a direct or indirect result of information
or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any
criminal proceedings (except proceedings for an offence against section 137.1
or 137.2 of the Criminal Code that relates to this Act or the
regulations).
306
Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals
Tribunal Act 1975, application may be made to the Administrative Appeals
Tribunal for review of a decision by the Migration Agents Registration
Authority made under this Division.
306AA
Stay orders
If the Administrative Appeals Tribunal
or a court orders a stay of a decision under section 303 to cancel or
suspend a registered migration agent’s registration, it is taken to be a
condition of the order that the prescribed supervisory requirements apply in
relation to the agent during the period of the order.
Division 3AA—Disciplining registered migration agents for engaging in
vexatious activity
Subdivision A—Definitions
306AB
Definitions
In this Division:
mandatory decision means a decision of the
Migration Agents Registration Authority under paragraph 306AG(1)(a), (b) or (c)
or subsection 306AGAC(1).
referral decision means a decision of the
Minister under subsection 306AC(1) or 306AGAA(8).
Subdivision B—Referral of registered migration agents for disciplinary
action
306AC
Minister may refer registered migration agent to the Migration Agents
Registration Authority
Referral
(1) The Minister may refer a registered
migration agent to the Migration Agents Registration Authority if the agent has
a high visa refusal rate in relation to a visa of a particular class.
Note 1: If the Minister is considering doing so, the
Minister must invite the agent to make a submission on the matter and must consider
any submission that is made: see section 306AE.
Note 2: If the Minister refers an agent, the Authority
must consider whether to discipline the agent: see section 306AG.
Note 3: The Minister’s decision and any decision of the
Authority to discipline the agent are reviewable by the Administrative Appeals
Tribunal: see section 306AJ.
High visa refusal rate
(2) This is
how to work out if the agent has a high visa refusal rate in relation to a visa
of a particular class:
Method statement
Step 1. Work out the
number of:
(a) valid
applications for a visa of that class; and
(b) applications
for review by a review authority of a decision to refuse to grant a visa of
that class;
made during a period
determined by the Minister under this Division in respect of which the agent
has given immigration assistance to the applicants concerned.
Note: Subsections (3)
and (4) provide for certain applications not to be counted.
Step 2. Work out if the
number at step 1 is equal to or greater than the number determined by the
Minister under this Division.
Step 3. If it is, work
out in respect of the applications covered by step 1 the number of decisions to
refuse to grant a visa that are standing at the end of all the proceedings
(including any appeals) resulting from such decisions.
Step 4. The agent has a high
visa refusal rate in relation to a visa of that class once the number
at step 3 expressed as a percentage of the number at step 1 is equal to or
greater than the percentage determined by the Minister under this Division in
relation to that class of visa.
Immigration assistance at visa application stage and
review stage
(3) If:
(a) the agent gives immigration
assistance to a person in respect of a valid application by the person for a
visa of a particular class; and
(b) the agent later gives immigration
assistance to the person in respect of an application (the review
application) by the person for review by a review authority of a
decision to refuse to grant that visa;
then the review application is not to be counted for the
purposes of step 1 of the method statement.
Immigration assistance in a prescribed capacity
(4) An application of a kind covered by step
1 of the method statement is not to be counted if the agent gave the
immigration assistance in a prescribed capacity.
Minister to have regard to any matter prescribed by the
regulations
(5) In deciding whether or not to refer a
registered migration agent to the Migration Agents Registration Authority under
this section, the Minister must have regard to any matter prescribed by the
regulations.
306AD
Ministerial determinations
Period for making applications
(1) The Minister may, by legislative
instrument, determine a period for the purposes of step 1 of the method
statement in section 306AC.
Minimum number of applications
(2) The Minister may, by legislative
instrument, determine a number for the purposes of step 2 of that method
statement.
Refusal percentage
(3) The Minister may, by legislative
instrument, determine a percentage for a specified class of visa for the
purposes of step 4 of that method statement.
306AE
Registered migration agent may make submissions
(1) If the Minister is considering referring
a registered migration agent to the Migration Agents Registration Authority
under section 306AC, the Minister must give the agent a written notice:
(a) stating that the Minister is
considering making such a decision and the reasons for it; and
(b) inviting the agent to make a
written submission to the Minister:
(i) on the reasons for the
agent having a high visa refusal rate in relation to the class of visa
concerned; and
(ia) on the disciplinary
action that may be taken against the agent if the Minister decides to refer the
agent; and
(ii) on any other matter
the agent considers relevant; and
(c) stating that any submission must
be made within the period (the objection period) of 21 days after
the notice is given.
Extension
(2) Before the end of the objection period,
the agent may, by notice in writing, request an extension of that period.
(3) The Minister must grant an extension of
14 days if the notice contains reasons for the request.
Minister to consider any submission
(4) The Minister must consider any written
submission received within the objection period (or that period as extended).
306AF
Notice of referral decision under section 306AC
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration
Agents Registration Authority written notice of a decision under section 306AC
to refer a registered migration agent to the Authority.
(2) The notice must be given to the Authority
by one of the methods specified in section 494B. The notice must specify
the grounds for the referral.
(2A) The notice must be accompanied by a copy of
any submission made to the Minister under subsection 306AE(1).
Notice to agent
(3) The Minister must give the registered
migration agent written notice of the decision to refer him or her to the
Authority.
(4) The notice must be given to the agent on
the same day that notice of the referral is given to the Authority.
(5) The notice given to the agent must set
out the grounds for the referral.
306AG
Migration Agents Registration Authority’s decision after a referral under
section 306AC
(1) If the Minister refers a registered
migration agent to the Migration Agents Registration Authority under section 306AC,
the Authority must:
(a) caution the agent; or
(b) suspend the agent’s registration;
or
(c) cancel the agent’s registration;
or
(d) decide not to discipline the agent
if the Authority is satisfied that there are special circumstances that justify
it making the decision.
Findings of fact
(2) In making its decision under subsection (1),
the Authority must take the findings of fact made by the Minister in relation
to the decision to refer the agent to be correct.
Matters Authority must take into account
(3) The Authority must take only the
following matters into account in making its decision under subsection (1):
(a) any written submission made to the
Minister under subsection 306AE(1) by the agent;
(b) the findings of fact made by the
Minister in relation to the decision to refer the agent;
(c) the grounds given by the Minister
for the decision to refer the agent.
Natural justice hearing rule
(4) This section, section 306AE and sections 494A
to 494D are taken to be an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the decision the Authority is
required to make under subsection (1) of this section.
Note: Section 306AE requires the Minister to
give the agent an opportunity to make a submission before the Minister refers
the agent. Sections 494A to 494D relate to the giving of documents by the
Minister under this Act.
Time of decision
(5) The Authority must make its decision
under subsection (1) as soon as possible, but not later than 28 days,
after receiving notice of the referral.
Note: Section 494C sets out when the Authority
is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the agent written
notice of its decision. The notice must set out the reasons for the decision.
(7) The decision takes effect at the time the
agent is given written notice of it.
Note: Section 332H sets out when the agent is
taken to have been given the notice.
Decision to take no disciplinary action
(8) If the Authority decides not to
discipline the agent, the Authority must give the Minister written notice of
its decision. The notice must set out the reasons for the decision. It must be
given to the Minister on the same day that notice of the decision is given to
the agent.
306AGAA
Minister may refer agent again if Migration Agents Registration Authority takes
no disciplinary action
(1) If the Migration Agents Registration
Authority decides not to discipline a registered migration agent under section 306AG,
the Minister must decide whether or not to refer the agent to the Authority for
disciplinary action under section 306AGAC.
Minister to consider Authority’s reasons
(2) In making his or her decision, the
Minister must consider the reasons given by the Authority for its decision not
to discipline the agent.
Minister must invite and consider submissions from
agent
(3) If the Minister is considering referring
the agent to the Authority for disciplinary action, the Minister must give the
agent a written notice:
(a) stating that the Minister is
considering making such a decision and the reasons for it; and
(b) inviting the agent to make a
written submission to the Minister:
(i) in relation to the
reasons given by the Authority for its decision not to discipline the agent;
and
(ii) on the disciplinary
action to be taken against the agent if the Minister decides to refer the
agent; and
(iii) on any other matter
the agent considers relevant; and
(c) stating that any submission must
be made within the period (the objection period) of 14 days after
the notice is given.
(4) Before the end of the objection period,
the agent may, by notice in writing, request an extension of that period.
(5) The Minister must grant an extension of
14 days if the notice contains reasons for the request.
(6) The Minister must consider any written
submission received within the objection period (or that period as extended).
(7) The Minister must also consider any
written submission made to him or her under subsection 306AE(1) in relation to
his or her decision to refer the agent to the Authority under section 306AC.
Minister’s decision to refer agent
(8) After considering the matters mentioned
in subsections (2), (6) and (7), the Minister may refer the agent to the
Authority for disciplinary action.
Note 1: If the Minister refers the agent, the Authority
must discipline the agent: see section 306AGAC.
Note 2: The Minister’s decision and the Authority’s
decision are reviewable by the Administrative Appeals Tribunal: see section 306AJ.
306AGAB
Notice of referral decision under section 306AG
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration
Agents Registration Authority written notice of a decision under section 306AGAA
to refer a registered migration agent to the Authority for disciplinary action.
(2) The notice must be given to the Authority
by one of the methods specified in section 494B. The notice must specify
the grounds for the referral.
(3) The notice must be accompanied by a copy
of any submission made to the Minister under subsection 306AGAA(3).
Notice to agent
(4) The Minister must give the agent written
notice of the decision to refer him or her to the Authority for disciplinary
action.
(5) The notice must be given to the agent on
the same day that notice of the referral is given to the Authority.
(6) The notice given to the agent must set
out the grounds for the referral.
306AGAC
Migration Agents Registration Authority’s disciplinary decision after a
referral under section 306AGAA
(1) If the Minister refers a registered
migration agent to the Migration Agents Registration Authority under section 306AGAA
for disciplinary action, the Authority must:
(a) caution the agent; or
(b) suspend the agent’s registration;
or
(c) cancel the agent’s registration.
Findings of fact
(2) In making its decision, the Authority
must take the findings of fact made by the Minister in relation to the
following decisions (the referral decisions) to be correct:
(a) the decision to refer the agent
under section 306AC;
(b) the decision to refer the agent
under section 306AGAA.
Matters Authority must take into account
(3) The Authority must take only the
following matters into account in making its decision under subsection (1):
(a) any written submission made to the
Minister under subsection 306AE(1) or 306AGAA(3) by the agent;
(b) the findings of fact made by the
Minister in relation to the referral decisions;
(c) the grounds given by the Minister
for the referral decisions.
Natural justice hearing rule
(4) This section, section 306AGAA and
sections 494A to 494D are taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the decision
the Authority is required to make under subsection (1) of this section.
Note: Section 306AGAA requires the Minister to
give the agent an opportunity to make a submission before the Minister refers
the agent for disciplinary action. Sections 494A to 494D relate to the
giving of documents by the Minister under this Act.
Time of decision
(5) The Authority must make its decision
under subsection (1) as soon as possible, but not later than 28 days,
after receiving notice of the referral.
Note: Section 494C sets out when the Authority
is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the agent written
notice of its decision. The notice must set out the reasons for the decision.
(7) The decision takes effect at the time the
agent is given written notice of it.
Note: Section 332H sets out when the agent is
taken to have been given the notice.
306AGA
Cautions or suspensions
Cautions
(1) If the Migration Agents Registration
Authority cautions a registered migration agent under section 306AG or 306AGAC,
the Authority may set one or more conditions for the lifting of the caution.
Note: Particulars of cautions are shown on the
Register: see section 287.
Suspensions
(2) If the Authority suspends a registered
migration agent’s registration under section 306AG or 306AGAC, the
Authority may:
(a) set a period of suspension of not
more than 5 years; or
(b) set a condition or conditions for
the lifting of the suspension.
(3) If 2 or more conditions are set under paragraph (2)(b),
one of them may be that at least a set period of suspension has ended.
Subdivision D—Review
306AJ
Review by the Administrative Appeals Tribunal
(1) An application may be made to the
Administrative Appeals Tribunal for review of a referral decision or a
mandatory decision.
Timing rules for review of a referral decision
(2) However, an application for review of a
referral decision may only be made:
(a) if a mandatory decision is made as
a result of the referral decision; and
(b) within the period within which an
application for review of the mandatory decision may be made.
(3) Accordingly, paragraph 29(1)(d) of the Administrative
Appeals Tribunal Act 1975 does not apply to an application for review of a
referral decision.
306AK
Stay orders
If the Administrative Appeals Tribunal
or a court orders a stay of a decision under section 306AG or 306AGAC to
cancel or suspend a registered migration agent’s registration, it is taken to
be a condition of the order that the prescribed supervisory requirements apply
in relation to the agent during the period of the order.
Subdivision E—Making disciplinary details available
306AL
Making disciplinary details publicly available
(1) If a registered migration agent is given
notice of a mandatory decision, then the Migration Agents Registration
Authority:
(a) must as soon as possible make
available in the prescribed way a statement that:
(i) sets out the mandatory
decision; and
(ii) sets out the referral
decision to which the mandatory decision relates; and
(iii) specifies the grounds
for the referral decision; and
(b) may prepare a statement about the
mandatory decision and the referral decision and make it available to one or
more groups of persons, or to one or more persons, in any way the Authority
thinks fit.
This subsection applies even if a stay order is made in
relation to the mandatory decision or the referral decision.
Content of statement
(3) A statement under this section need not
set out the findings on material questions of fact and need not refer to the
evidence or other material on which those findings were based.
Protection from civil proceedings
(4) No action or other proceeding for damages
lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
306AM
Providing disciplinary details to clients
(1) If the Migration Agents Registration
Authority makes a mandatory decision in relation to a registered migration
agent, the Authority or the Secretary may inform one or more of the clients of
the agent about any one or more of the following:
(a) the making of the mandatory
decision;
(b) the making of the referral
decision that resulted in the making of the mandatory decision;
(c) whether or not the agent has
applied for review of the referral decision or the mandatory decision;
(d) the status of any such review.
(3) In this section:
client has the meaning given by section 306C.
Division 3A—Documents relating to clients of inactive migration agents
and deceased migration agents
306A
Objects of this Division
The objects of this Division are:
(a) to ensure that clients of inactive
migration agents are not unduly disadvantaged by the agent becoming inactive;
and
(b) to ensure that clients of deceased
migration agents are not unduly disadvantaged by the death of the agent;
by empowering the Migration Agents Registration Authority
to:
(c) obtain originals or copies of
client documents from inactive migration agents or from the legal personal
representatives of deceased migration agents; and
(d) give the originals or copies to
the clients concerned.
Note: An agent becomes inactive as
a result of expiry of registration, deregistration, cancellation of
registration, suspension of registration, or incapacity (see section 306B).
306B
Inactive migration agents
For the purposes of this Division:
(a) if a person ceases to be a
registered migration agent because the person’s period of registration expires
under section 299:
(i) the person becomes an inactive
migration agent at the time of the cessation; and
(ii) the person remains an
inactive migration agent until the end of the period of 2 years after the
cessation or until the person again becomes a registered migration agent,
whichever happens first; and
(b) if, at a person’s request, the Migration
Agents Registration Authority deregisters the person under section 302:
(i) the person becomes an inactive
migration agent at the time of the deregistration; and
(ii) the person remains an
inactive migration agent until the end of the period of 2 years after the
deregistration or until the person again becomes a registered migration agent,
whichever happens first; and
(c) if the Migration Agents
Registration Authority cancels a person’s registration under section 303,
306AG or 306AGAC:
(i) the person becomes an inactive
migration agent at the time of the cancellation; and
(ii) the person remains an
inactive migration agent for 2 years; and
(d) if the Migration Agents
Registration Authority suspends a person’s registration under section 303,
306AG or 306AGAC:
(i) the person becomes an inactive
migration agent at the time of the suspension; and
(ii) the person remains an
inactive migration agent for the period of the suspension; and
(e) if, while a person is a registered
migration agent, the person becomes physically or mentally incapable, for a
continuous period of not less than 14 days, of giving immigration assistance:
(i) the person becomes an inactive
migration agent at the end of that period of 14 days; and
(ii) the person remains an
inactive migration agent until the person ceases to be physically or mentally
incapable of giving immigration assistance.
306C
Clients
For the purposes of this Division, if a
registered migration agent gave, or anticipated giving, immigration assistance to
another person:
(a) the other person is a client
of the registered migration agent and, if the registered migration agent dies,
the other person remains a client of the deceased registered
migration agent; and
(b) if the registered migration agent
becomes an inactive migration agent—the other person remains a client
of the inactive migration agent and, if the inactive migration agent dies, the
other person remains a client of the deceased inactive migration
agent.
306D
Power to obtain documents from inactive migration agent
(1) This section applies to a person who is
an inactive migration agent if the Migration Agents Registration Authority has
reason to believe that:
(a) before becoming an inactive
migration agent and while the person was a registered migration agent, the
person gave, or anticipated giving, immigration assistance to one or more
clients; and
(b) the inactive migration agent has
in his or her possession or control documents that:
(i) are or were connected
with the giving, or anticipated giving, of that immigration assistance to those
clients; and
(ii) relate to the affairs
of those clients.
(2) The Migration Agents Registration
Authority may, by written notice given to the inactive migration agent, require
him or her:
(a) to make copies of any such
documents and to produce those copies to the Authority within the specified
period and in the specified manner; or
(b) to produce to the Authority,
within the specified period and in the specified manner, any such documents
that are owned by those clients or that were provided to the agent by, or on
behalf of, those clients.
Note: An example of a document provided to a
registered migration agent is a client’s passport.
(3) A notice under subsection (2) must
set out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need
not identify any particular client or clients.
(5) A period specified in a notice under subsection (2)
must end at least 14 days after the notice was given.
Note: Section 332H sets out when the inactive
migration agent is taken to have been given the notice.
306E
Power to obtain documents from representative of deceased inactive migration
agent
(1) This section applies to the legal
personal representative of a deceased person if the deceased person was an
inactive migration agent at the time of death and the Migration Agents
Registration Authority has reason to believe that:
(a) before becoming an inactive
migration agent and while the deceased person was a registered migration agent,
the deceased person gave, or anticipated giving, immigration assistance to one
or more clients; and
(b) the legal personal representative
has in his or her possession or control documents that:
(i) are or were connected
with the giving, or anticipated giving, of that immigration assistance to those
clients; and
(ii) relate to the affairs
of those clients.
(2) The Migration Agents Registration
Authority may, by written notice given to the legal personal representative,
require the legal personal representative:
(a) to make copies of any such
documents and to produce those copies to the Authority within the specified
period and in the specified manner; or
(b) to produce to the Authority,
within the specified period and in the specified manner, any such documents
that are owned by those clients or that were provided to the registered
migration agent by, or on behalf of, those clients.
Note: An example of a document provided to a
registered migration agent is a client’s passport.
(3) A notice under subsection (2) must set
out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need
not identify any particular client or clients.
(5) A period specified in a notice under subsection (2)
must end at least 14 days after the notice was given.
Note: Section 332H sets out when the legal
personal representative is taken to have been given the notice.
306F
Power to obtain documents from representative of deceased registered migration
agent
(1) This section applies to the legal
personal representative of a deceased person if the deceased person was a
registered migration agent at the time of death and the Migration Agents
Registration Authority has reason to believe that:
(a) while the deceased person was a
registered migration agent, the deceased person gave, or anticipated giving,
immigration assistance to one or more clients; and
(b) the legal personal representative
has in his or her possession or control documents that:
(i) are or were connected
with the giving, or anticipated giving, of that immigration assistance to those
clients; and
(ii) relate to the affairs
of those clients.
(2) The Migration Agents Registration
Authority may, by written notice given to the legal personal representative,
require the legal personal representative:
(a) to make copies of any such
documents and to produce those copies to the Authority within the specified
period and in the specified manner; or
(b) to produce to the Authority,
within the specified period and in the specified manner, any such documents
that are owned by those clients or that were provided to the registered
migration agent by, or on behalf of, those clients.
Note: An example of a document provided to a
registered migration agent is a client’s passport.
(3) A notice under subsection (2) must
set out the effect of sections 306G and 306H.
(4) A notice under subsection (2) need
not identify any particular client or clients.
(5) A period specified in a notice under subsection (2)
must end at least 14 days after the notice was given.
Note: Section 332H sets out when the legal
personal representative is taken to have been given the notice.
306G
Reasonable compensation
A person is entitled to be paid by the
Commonwealth reasonable compensation for complying with a notice under section 306D,
306E or 306F.
306H
Failure to comply with notice
(1) A person is guilty of an offence if:
(a) the person is subject to a
requirement under section 306D, 306E or 306F; and
(b) the person contravenes the
requirement.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
306J
Self‑incrimination
(1) An individual is not excused from
producing a document under section 306D, 306E or 306F on the ground that
the production of the document may tend to incriminate the individual or expose
the individual to a penalty.
(2) However:
(a) any document so produced; and
(b) any information or thing
(including any document) obtained as a direct or indirect result of a document
so produced;
is not admissible in evidence against the individual in
any criminal proceedings (except proceedings for an offence against section 137.1
or 137.2 of the Criminal Code that relates to this Act or the
regulations).
306K
Migration Agents Registration Authority to give client documents to clients
(1) If:
(a) a document is given to the
Migration Agents Registration Authority under section 306D by an inactive
migration agent; and
(b) the document relates to the
affairs of a particular client of the inactive migration agent;
then, as soon as practicable, the Migration Agents
Registration Authority must:
(c) give the document to:
(i) the client; or
(ii) if the client has, by
written notice given to the Authority, nominated a person to receive such
documents—that person; and
(d) give the client information about
how to contact other registered migration agents.
(2) If:
(a) a document is given to the
Migration Agents Registration Authority under section 306E or 306F by the
legal personal representative of:
(i) a deceased inactive
migration agent; or
(ii) a deceased registered
migration agent; and
(b) the
document relates to the affairs of a particular client of the deceased
migration agent;
then, as soon as practicable, the Migration Agents
Registration Authority must:
(c) give the document to:
(i) the client; or
(ii) if the client has, by
written notice given to the Authority, nominated a person to receive such
documents—that person; and
(d) give the client information about
how to contact other registered migration agents.
306L
Compensation—constitutional safety‑net
(1) If:
(a) apart from this section, the
operation of this Division would result in the acquisition of property from a
person otherwise than on just terms; and
(b) the acquisition would be invalid
because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a
reasonable amount to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in the Federal Court for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
(3) A provision of this Act (other than this
Division) that provides for compensation for the acquisition of property does
not apply to this Division.
(4) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
Division 4—Investigations and decision‑making by the Migration
Agents Registration Authority
308
Requiring registered migration agents to give information
(1) The Migration Agents Registration
Authority may require a registered migration agent:
(a) to make a statutory declaration in
answer to questions in writing by the Authority; or
(b) to appear before an individual or
individuals specified by the Authority and to answer questions; or
(c) to provide the Authority with
specified documents or records relevant to the agent’s continued registration.
(2) If a registered migration agent appears
before one individual to answer questions, that individual must record the
questions and answers and give the record to the Authority.
(2A) If a registered migration agent appears
before 2 or more individuals to answer questions, one of them must record the
questions and answers and give the record to the Authority.
(3) A registered migration agent is not
excused from giving information or providing a document on the ground that the
information or provision of the document may tend to incriminate the person.
(4) However:
(a) any information or document
provided in response to a requirement under subsection (1); and
(b) any information or thing
(including any document) obtained as a direct or indirect result of information
or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered
migration agent in any criminal proceedings (except proceedings for an offence
against section 137.1 or 137.2 of the Criminal Code that relates to
this Act or the regulations).
309
Persons may make submissions
(1) If the
Migration Agents Registration Authority is considering refusing a registration
application, it must inform the applicant of that fact and the reasons for it
and invite the applicant to make a further submission in support of his or her
application.
(2) If the Migration Agents Registration
Authority is considering making a decision under section 303 to cancel or
suspend a registered migration agent’s registration, or to caution such an
agent, it must inform the agent of that fact and the reasons for it and invite
the agent to make a submission on the matter.
(3) In this section:
submission means:
(a) a statutory declaration; or
(b) a written argument.
310
Persons may appear before Migration Agents Registration Authority
(1) This section applies where the Migration
Agents Registration Authority has invited a submission on a matter under
section 309.
(2) If the Migration Agents Registration
Authority does not receive a submission, it may decide the matter on the
information before it.
(3) If the Migration Agents Registration
Authority receives a submission, it may:
(a) decide the matter; or
(b) give the person who made the
submission the opportunity to appear before it and then decide the matter.
311
Migration Agents Registration Authority not bound by legal forms etc.
The Migration Agents Registration
Authority, in considering a registration application or a possible disciplinary
action under section 303:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) must act according to substantial
justice and the merits of the case.
Division 4A—Disciplining former registered migration agents
Subdivision A—Complaints about provision of immigration assistance
311A
Barring former registered migration agents from
being registered for up to 5 years
(1) The Migration Agents Registration
Authority may decide to bar a former registered migration agent from being a
registered migration agent for a period if, after investigating a complaint
about him or her in relation to his or her provision of immigration assistance
while he or she was a registered migration agent, it is satisfied that the
subject matter of the complaint is made out.
Note: Before making such a decision, the Authority
must invite the former registered migration agent to make a submission: see
section 311D.
(2) The period must not be more than 5 years
starting on the day of the Authority’s decision.
311B
Notice of disciplinary decision
Notice to former agent
(1) The Migration Agents Registration
Authority must give a former registered migration agent written notice of a
decision made under section 311A in relation to the former agent.
(2) The notice must set out the reasons for
the decision and the period that the former agent is barred from being a
registered migration agent.
When decision takes effect
(3) The decision takes effect at the time the
former agent is given written notice of it.
Note: Section 332H sets out when the former
agent is taken to have been given the notice.
311C
Making disciplinary details publicly available
(1) If a former registered migration agent is
given notice of a decision under section 311A, then the Migration Agents
Registration Authority:
(a) must as soon as possible make
available in the prescribed way a statement that sets out the decision and
specifies the grounds for the decision; and
(b) may prepare a statement about the
decision and make it available to one or more groups of persons, or to one or
more persons, in any way the Authority thinks fit.
This subsection applies even if a stay order is made in
relation to the decision.
Content of statement
(3) A statement under this section need not
set out the findings on material questions of fact and need not refer to the
evidence or other material on which those findings were based.
Protection from civil proceedings
(4) No action or other proceeding for damages
lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
311D
Former registered migration agent may make a submission etc.
Invitation to make submission
(1) Before making a decision under subsection
311A(1), the Migration Agents Registration Authority must give the former
registered migration agent a written notice:
(a) stating that the Authority
proposes to make such a decision and the reasons for it; and
(b) inviting him or her to make a
written submission to the Authority on the matter within 28 days after the
notice is given.
Note: Section 332H sets out when the former
agent is taken to have been given the notice.
Authority to consider any submission
(2) The Authority must consider any written
submission received within that period.
No submission received
(3) If the Authority does not receive a
written submission, it may decide the matter on the information before it.
Submission received
(4) If the Authority receives a written
submission, it may:
(a) decide the matter; or
(b) give the former registered
migration agent the opportunity to appear before it and then decide the matter.
311E
Authority not bound by legal forms etc.
In considering making a decision under
subsection 311A(1), the Migration Agents Registration Authority:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) must act according to substantial
justice and the merits of the case.
311EA
Requiring former registered migration agents to give information or documents
(1) This section applies if the Migration
Agents Registration Authority is considering making a decision under section 311A
to bar a former registered migration agent from being a registered migration
agent for a period.
(2) The Authority may, by written notice
given to the former agent, require him or her to provide the Authority with
prescribed information or prescribed documents within the specified period and
in the specified manner.
(3) A period specified in a notice under this
section must end at least 14 days after the notice was given.
Note: Section 332H sets out when the former
agent is taken to have been given the notice.
Offence
(4) A person commits an offence if:
(a) the person is subject to a
requirement under this section; and
(b) the person contravenes the
requirement.
Penalty: 60 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Self‑incrimination
(6) A person is not excused from giving
information or providing a document on the ground that the information or
provision of the document may tend to incriminate the person.
(7) However:
(a) any information or document
provided in response to a requirement under subsection (2); and
(b) any information or thing
(including any document) obtained as a direct or indirect result of information
or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any
criminal proceedings (except proceedings for an offence against section 137.1
or 137.2 of the Criminal Code that relates to this Act or the
regulations).
311F
Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals
Tribunal Act 1975, an application may be made to the Administrative Appeals
Tribunal for review of a decision by the Migration Agents Registration
Authority under subsection 311A(1).
Subdivision B—Engaging in vexatious activity
311G
Definitions
In this Subdivision:
mandatory decision means a decision of the
Migration Agents Registration Authority under section 311L.
referral decision means a decision of the
Minister under section 311H.
311H
Minister may refer former registered migration agent for disciplinary action
(1) The Minister may refer a former
registered migration agent to the Migration Agents Registration Authority for
disciplinary action if, in relation to his or her provision of immigration
assistance while he or she was a registered migration agent, he or she had a
high visa refusal rate in relation to a visa of a particular class.
Note 1: If the Minister is considering doing so, the
Minister must invite the former agent to make a submission on the matter and
must consider any submission that is made: see section 311J.
Note 2: If the Minister does refer a former agent, the
Authority must discipline the former agent: see section 311L.
Note 3: The Minister’s decision and the Authority’s
decision are reviewable by the Administrative Appeals Tribunal: see section 311M.
(2) In deciding whether or not to refer a
former registered migration agent to the Migration Agents Registration
Authority for disciplinary action, the Minister must have regard to any matter
prescribed by the regulations.
311J
Former registered migration agent may make submissions
(1) If the Minister is considering referring
a former registered migration agent to the Migration Agents Registration
Authority for disciplinary action, the Minister must give the former agent a
written notice:
(a) stating that the Minister is
considering making such a decision and the reasons for it; and
(b) inviting the former agent to make
a written submission to the Minister:
(i) on the reasons for the
former agent having a high visa refusal rate in relation to the class of visa
concerned; and
(ia) on the period the
former agent is to be barred from being a registered migration agent if the
Minister decides to refer the former agent; and
(ii) on any other matter
the former agent considers relevant; and
(c) stating that any submission must
be made within the period (the objection period) of 21 days after
the notice is given.
Extension
(2) Before the end of the objection period,
the former agent may, by notice in writing, request an extension of that
period.
(3) The Minister must grant an extension of
14 days if the notice contains reasons for the request.
Minister to consider any submission
(4) The Minister must consider any written
submission received within the objection period (or that period as extended).
311K
Notice of referral decision
Notice to Migration Agents Registration Authority
(1) The Minister must give the Migration
Agents Registration Authority written notice of a decision to refer a former
registered migration agent to the Authority for disciplinary action.
(2) The notice must be given to the Authority
by one of the methods specified in section 494B. The notice must specify
the grounds for the referral.
(2A) The notice must be accompanied by a copy of
any submission made to the Minister under subsection 311J(1).
Notice to former agent
(3) The Minister must give the former
registered migration agent written notice of the decision to refer him or her
to the Authority for disciplinary action.
(4) The notice must be given to the former
agent on the same day that notice of the referral is given to the Authority.
(5) The notice given to the former agent must
set out the grounds for the referral.
311L
Taking of disciplinary action
(1) If the Minister refers a former
registered migration agent to the Migration Agents Registration Authority for
disciplinary action, the Authority must bar him or her from being a registered
migration agent for a period of not more than 5 years starting on the day that
the Authority’s decision takes effect.
Findings of fact
(2) In making its decision, the Authority
must take the findings of fact made by the Minister in relation to the referral
decision to be correct.
Matters Authority must take into account
(3) The Authority must take only the
following matters into account in making its decision under subsection (1):
(a) any written submission made to the
Minister under subsection 311J(1) by the former agent;
(b) the findings of fact made by the
Minister in relation to the referral decision;
(c) the grounds given by the Minister
for the referral decision.
Natural justice hearing rule
(4) This section, section 311J and
sections 494A to 494D are taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the decision
the Authority is required to make under subsection (1) of this section.
Note: Section 311J requires the Minister to
give the former agent an opportunity to make a submission before the Minister
refers the former agent for disciplinary action. Sections 494A to 494D
relate to the giving of documents by the Minister under this Act.
Time of decision
(5) The Authority must make its decision
under subsection (1) as soon as possible, but not later than 14 days,
after receiving notice of the referral.
Note: Section 494C sets out when the Authority
is taken to have received notice of the referral.
Notice to agent
(6) The Authority must give the former agent
written notice of its decision. The notice must set out the reasons for the
decision.
(7) The decision takes effect at the time the
former agent is given written notice of it.
Note: Section 332H sets out when the former
agent is taken to have been given the notice.
311M
Review by the Administrative Appeals Tribunal
An application may be made to the
Administrative Appeals Tribunal for review of a referral decision or a
mandatory decision.
311P
Making disciplinary details publicly available
(1) If a former registered migration agent is
given notice of a mandatory decision, then the Migration Agents Registration
Authority:
(a) must as soon as possible make
available in the prescribed way a statement that:
(i) sets out the mandatory
decision; and
(ii) sets out the referral
decision to which the mandatory decision relates; and
(iii) specifies the grounds
for the referral decision; and
(b) may prepare a statement about the
mandatory decision and the referral decision and make it available to one or
more groups of persons, or to one or more persons, in any way the Authority thinks
fit.
This subsection applies even if a stay order is made in
relation to the mandatory decision or the referral decision.
Content of statement
(3) A statement under this section need not
set out the findings on material questions of fact and need not refer to the
evidence or other material on which those findings were based.
Protection from civil proceedings
(4) No action or other proceeding for damages
lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
Division 5—Obligations of registered migration agents
312
Notification obligations
(1) A registered migration agent must notify
the Migration Agents Registration Authority in writing within 14 days after any
of the following events occurs:
(a) he or she becomes bankrupt;
(b) he or she applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors;
(c) he or she compounds with his or
her creditors;
(d) he or she makes an assignment of
remuneration for the benefit of his or her creditors;
(e) he or she is convicted of an
offence under a law of the Commonwealth or of a State or Territory;
(ea) if he or she paid, in relation to
his or her current period of registration, the charge payable under regulation
5 of the Migration Agents Registration Application Charge Regulations
1998—he or she begins to give immigration assistance:
(i) on a commercial, or
for‑profit, basis; or
(ii) as a member of, or a
person associated with, an organisation that operates on a commercial, or for‑profit,
basis;
(f) he or she becomes an employee, or
becomes the employee of a new employer, and will give immigration assistance in
that capacity;
(fa) he or she becomes a member of a
partnership and will give immigration assistance in that capacity;
(g) if he or she is a member or an
employee of a partnership and gives immigration assistance in that capacity—a
member of the partnership becomes bankrupt;
(h) if he or she is an executive
officer or an employee of a corporation and gives immigration assistance in
that capacity:
(i) a receiver of its
property or part of its property is appointed; or
(iii) it begins to be wound
up.
Penalty: 100 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The day on which the event mentioned in paragraph (1)(ea)
occurs is to be worked out in accordance with the Migration Agents
Registration Application Charge Regulations 1998.
312A
Notification of giving of immigration assistance to visa applicants
(1) If:
(a) a registered migration agent gives
immigration assistance to a visa applicant in relation to the visa application;
and
(b) the agent gives the assistance after
having agreed to represent the applicant;
the agent must notify the Department in accordance with
the regulations and within the period worked out in accordance with the
regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
312B
Notification of giving of immigration assistance to review applicants
(1) If:
(a) a registered migration agent gives
immigration assistance to a person in respect of a review application made by
the person; and
(b) the agent gives the assistance
after having agreed to represent the person;
the agent must notify the review authority concerned in
accordance with the regulations and within the period worked out in accordance
with the regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) In this section:
review application means an application for
review by a review authority of a decision to refuse to grant a person a visa.
313
Persons charged for services to be given detailed statement of services
(1) A registered migration agent is not
entitled to be paid a fee or other reward for giving immigration assistance to
another person (the assisted person) unless the agent gives the
assisted person a statement of services.
(2) A statement of services must set out:
(a) particulars of each service
performed; and
(b) the charge made in respect of each
such service.
(3) An assisted person may recover the amount
of a payment as a debt due to him or her if he or she:
(a) made the payment to a registered
migration agent for giving immigration assistance; and
(b) did not receive a statement of
services before making the payment; and
(c) does not receive a statement of
services within the period worked out in accordance with the regulations.
(4) This section does not apply to the giving
of immigration legal assistance by a lawyer.
314
Code of Conduct for migration agents
(1) The
regulations may prescribe a Code of Conduct for migration agents.
(2) A registered migration agent must conduct
himself or herself in accordance with the prescribed Code of Conduct.
Division 6—Migration Agents Registration Authority
315
Appointing the Migration Institute of Australia Limited as the Migration Agents
Registration Authority
(1) The Minister may make a written
instrument appointing the Institute for the purposes of the definition of Migration
Agents Registration Authority in section 275.
Note: The Minister may also revoke the appointment.
See subsection 33(3) of the Acts Interpretation Act 1901.
(2) An appointment or revocation of an
appointment does not affect an earlier exercise of a power, or performance of a
function, of the Migration Agents Registration Authority. Anything done by, or
in relation to, the person who was the Authority before the appointment or
revocation, is taken to have been done by, or in relation to, the person who is
the Authority afterwards.
316
Functions of Migration Agents Registration Authority
(1) The functions of the Migration Agents
Registration Authority are:
(a) to deal with registration
applications in accordance with this Part; and
(b) to monitor the conduct of
registered migration agents in their provision of immigration assistance and of
lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints in
relation to the provision of immigration assistance by registered migration
agents; and
(d) to take appropriate disciplinary
action against registered migration agents or former registered migration
agents; and
(e) to investigate complaints about
lawyers in relation to their provision of immigration legal assistance, for the
purpose of referring appropriate cases to professional associations for
possible disciplinary action; and
(f) to inform the appropriate
prosecuting authorities about apparent offences against this Part or Part 4;
and
(g) to monitor the adequacy of any
Code of Conduct; and
(h) such other functions as are
conferred on the Authority by this Part.
(1A) In performing its function under paragraph (1)(c),
the Authority may start, or complete, an investigation of a complaint about a
person at a time when he or she is no longer a registered migration agent.
(1B) However, the Authority can investigate a
complaint about a former registered migration agent only if the complaint is
received within 12 months after he or she ceased to be a registered migration
agent.
(2) So long as the Institute is appointed
under section 315, the Migration Agents Registration Authority also has
the function of advising the Minister on the adequacy of any Code of Conduct.
317
General powers of the Migration Agents Registration Authority
The Migration Agents Registration
Authority has power to do all things necessarily or conveniently done for, or
in connection with, the performance of its functions.
318
Power to refer people to mediation
If the Migration Agents Registration Authority
is investigating a complaint about a person who is or was a registered
migration agent, the Authority may refer the complainant and the person to a
mediator to resolve the matter complained of.
319
Power to refer lawyers’ conduct to other authorities
(1) The Migration Agents Registration
Authority may refer to an authority responsible for disciplining lawyers the
conduct of a registered migration agent, or a former registered migration
agent, who holds a practising certificate (however described) entitling him or
her to practise as a lawyer.
Conduct of registered migration agents
(2) If the Migration Agents Registration
Authority refers the conduct of a registered migration agent, it may not take
action against the agent under section 303 on the basis of that conduct.
Note: Section 303 allows the Migration Agents
Registration Authority to caution a registered migration agent or suspend or
cancel a registered migration agent’s registration.
Conduct of former registered migration agents
(3) If the Migration Agents Registration
Authority refers the conduct of a former registered migration agent, it may not
take action against him or her under subsection 311A(1) on the basis of that
conduct.
Note: Subsection 311A(1) allows the Authority to bar
a former registered migration agent from being a registered migration agent for
a period of not more than 5 years starting on the day of its decision.
319A
Institute may delegate powers and functions
(1) While the Institute is appointed under
section 315, the Institute may, by writing, delegate any or all of the
Migration Agents Registration Authority’s functions or powers under this Part
to:
(a) a committee of the Institute; or
(b) an officer of the Institute; or
(c) an employee of the Institute.
Directions
(2) In performing a delegated function or
exercising a delegated power, a delegate must comply with any written
directions given by the Institute.
How committee to perform function or exercise power
(3) A function or power so delegated to a
committee may be performed or exercised by a majority of the members of the
committee and may not otherwise be performed or exercised under the delegation.
320
Minister may delegate powers and functions
(1) The Minister may delegate any of the
Migration Agents Registration Authority’s powers or functions under this Part
to a person in the Department who is appointed or engaged under the Public
Service Act 1999, for any period when the Institute is not appointed under
section 315.
(2) A delegation must be in writing signed by
the Minister.
(3) If the Minister delegates a power or
function of the Migration Agents Registration Authority, the Minister may
disclose to the delegate personal information (as defined in the Privacy Act
1988) to help the delegate exercise the power or perform the function.
321
Disclosure of personal information to the Migration Agents Registration
Authority
Overview
(1) This section authorises certain
disclosures of personal information (as defined by the Privacy Act 1988)
for the purpose of facilitating or expediting the exercise of the powers, or
performance of the functions, of the Migration Agents Registration Authority.
Disclosure by the Department to the Authority
(2) The Department may make a disclosure to
the Migration Agents Registration Authority.
Disclosure by the Minister
(3) If the Minister appoints the Institute
under section 315, the Minister may make a disclosure to the Institute or
an officer or employee of the Institute.
Note: Section 315 lets the Minister appoint the
Institute for the purposes of the definition of Migration Agents
Registration Authority in section 275.
Preliminary disclosure to the Institute
(4) The Department or the Minister may make a
disclosure to the Institute or an officer or employee of the Institute at a
time when the Minister has made an instrument appointing the Institute under
section 315 but the instrument has not taken effect.
Section not limited to information obtained after
commencement
(5) The Department or the Minister may
disclose information whether it was obtained before or after the commencement
of this section.
321A
Disclosure of personal information by the Migration Agents Registration
Authority
(1) The Migration Agents Registration
Authority may disclose personal information about a registered migration agent,
or an inactive migration agent, to any of the following (the recipient):
(a) the Secretary or an authorised
officer;
(b) a review authority.
(2) However, the Authority may do so only in
the prescribed circumstances.
(3) The regulations may prescribe
circumstances in which the recipient may use or disclose personal information
disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning
given by section 306B.
personal information has the same meaning as
in the Privacy Act 1988.
322
Annual report
(1) If an appointment of the Institute under
section 315 is in force at the end of a financial year, the Institute must
give a report on the administration of this Part during the financial year to
the Minister for presentation to the Parliament.
Note: Section 34C of the Acts Interpretation
Act 1901 explains when the Institute must give the report to the Minister,
and when the Minister must cause the report to be tabled in each House of the
Parliament.
(2) If an
appointment of the Institute under section 315 is not in force at the end
of the financial year, the Minister must cause to be tabled in each House of
the Parliament a report on the administration of this Part during the financial
year, before the end of the 15th sitting day of that House after the 31 December
immediately following the financial year.
Division 6A—Registration application fees and registration status charges
332A
Collection of registration status charge
When charge due and payable
(1) Registration status charge is due and
payable at the time worked out in accordance with a determination made, by
legislative instrument, by the Migration Agents Registration Authority.
Recovery of charge
(3) Registration status charge that has become
due for payment may be recovered by the Migration Agents Registration
Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.
332B
Payments to Migration Institute of Australia Limited
(1) There is payable to the Institute out of
the Consolidated Revenue Fund an amount equal to the sum of registration
application fees collected while an instrument under section 315
appointing the Institute is in force.
(1A) There is payable to the Institute out of
the Consolidated Revenue Fund an amount equal to the sum of registration status
charges collected (including amounts recovered under section 332A) while
an instrument under section 315 appointing the Institute is in force.
(2) The Consolidated Revenue Fund is
appropriated for the purposes of this section.
Division 7—Other things
332C
Removing disciplinary details—registered migration agents
(1) The Migration Agents Registration
Authority must remove any of the following details that are made available by
electronic means under this Part:
(a) any statement relating to the
cancellation or suspension of a registered migration agent’s registration;
(b) any statement about the cautioning
of such an agent.
Time for removal
(2) The Authority must remove the details
within the period worked out in accordance with the regulations.
(3) The regulations may prescribe different
periods in relation to details about cancellations, suspensions or cautions.
332D
Removing disciplinary details—former registered migration agents
(1) The Migration Agents Registration
Authority must remove any statement that is made available by electronic means
under section 311C or 311P.
(2) The Authority must remove the statement
within the period worked out in accordance with the regulations.
332E
Protection from civil proceedings
Complaints about registered migration agents
(1) No action or other proceeding for damages
lies against a person in respect of loss, damage or injury of any kind suffered
by another person because of any of the following acts done in good faith:
(a) the making of a complaint to the
Migration Agents Registration Authority in relation to the provision of
immigration assistance by a registered migration agent;
(b) the making of a statement to, or
the giving of a document or information to, the Authority in connection with
the investigation of such a complaint.
Complaints about persons who are not registered
migration agents
(2) No action or other proceeding for damages
lies against a person in respect of loss, damage or injury of any kind suffered
by another person because of any of the following acts done in good faith:
(a) the making of a complaint to the
Department in relation to the provision of immigration assistance by a person
who is not a registered migration agent;
(b) the making of a statement to, or
the giving of a document or information to, the Department in connection with
the investigation of such a complaint;
(c) the investigation of such a
complaint.
Institute etc.
(3) The Institute, or an officer or employee
of the Institute, is not liable to an action or other proceeding for damages
for or in relation to any of the following acts done in good faith:
(a) the performance or purported
performance of any function conferred on the Migration Agents Registration
Authority under this Part;
(b) the exercise or purported exercise
of any power conferred on the Authority under this Part.
Commonwealth etc.
(4) None of the following:
(a) the Commonwealth;
(b) the Minister;
(c) an officer;
(d) any other person;
is liable to an action or other proceeding for damages for
or in relation to any of the following acts done in good faith:
(e) the performance or purported
performance of any function conferred on the Minister under this Part;
(f) the exercise or purported
exercise of any power conferred on the Minister under this Part.
332F
Disclosure of personal information by the Secretary
(1) The Secretary may disclose personal
information about a registered migration agent, or an inactive migration agent,
to a review authority.
(2) However, the Secretary may do so only in
the prescribed circumstances.
(3) The regulations may prescribe
circumstances in which the review authority may use or disclose personal
information disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning
given by section 306B.
personal information has the same meaning as
in the Privacy Act 1988.
332G
Disclosure of personal information by a review authority
Discretionary disclosure
(1) A review authority may disclose personal
information about a registered migration agent, or an inactive migration agent,
to the Secretary or an authorised officer.
(2) However, a review authority may do so
only in the prescribed circumstances.
(3) The regulations may prescribe
circumstances in which the Secretary or authorised officer may use or disclose
personal information disclosed under subsection (1).
Mandatory disclosure
(4) If a registered migration agent notifies
a review authority that the agent has given immigration assistance to a person
in respect of a review application made by the person, the review authority
must notify the Department, in accordance with the regulations, that the agent
has given immigration assistance to the person in respect of the review
application.
Definitions
(5) In this section:
inactive migration agent has the meaning
given by section 306B.
personal information has the same meaning as
in the Privacy Act 1988.
review application means an application for
review by a review authority of a decision to refuse to grant a person a visa.
332H
Giving of notices under this Part
(1) If a provision of this Part requires or
permits the Migration Agents Registration Authority to give a notice to a
person (the recipient):
(a) the Authority must give the notice
to the recipient by 1 of the 4 methods set out in the following table; and
(b) the time at which the recipient is
taken to have been given the notice is the time set out in the table.
|
Giving of notices under
this Part
|
|
Item
|
Methods of giving
notices
|
Timing rule
|
|
1
|
Handing the notice to the recipient
|
When it is handed to the recipient
|
|
2
|
Handing the notice to another person who:
(a) is at the last residential or business address provided
to the Authority by the recipient for the purposes of receiving notices; and
(b) appears to live there (in the case of a residential
address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age
|
When it is handed to the other person
|
|
3
|
Dating the notice, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the
date of the notice; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Authority by
the recipient for the purposes of receiving notices; or
(ii) the last residential or business address provided to the
Authority by the recipient for the purposes of receiving notices
|
(a) if the notice was dispatched from a place in Australia to
an address in Australia—7 working days (in the place of that address) after
the date of the notice; or
(b) in any other case—21 days after the date of the notice
|
|
4
|
Transmitting the notice by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address, as the case may be, provided to the Authority by the
recipient for the purposes of receiving notices
|
At the end of the day on which the notice is transmitted
|
(2) This section has effect despite any
provision in the Electronic Transactions Act 1999.
Part 4—Offences relating to decisions under Act
334
Offences in relation to false or misleading statements regarding the making of
decisions
(1) A person is guilty of 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 is guilty of 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 provided under section 40, 46,
166, 170, 175, 188, 192 or 261AA, 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 provided
under section 40, 46, 166, 170, 175, 188, 192 or 261AA;
(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 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 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 this Act or the
regulations or of the Australian Citizenship Act 2007 or the regulations
made under that Act;
(h) complying with laws of the
Commonwealth or the States or Territories.
(3) However, the Secretary 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, who are of character concern or who are of
national security concern; 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 or deported from Australia; or
(b) is for the purpose of administering
or managing the storage of identifying information; 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
(f) is for the purpose of a
proceeding, before a court or tribunal, relating to the person to whom the
identifying information in question relates; or
(g) is for the purpose of an
investigation by the Privacy 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
(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 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 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 offshore entry
person who makes a claim for protection under the Refugees Convention as
amended by the Refugees Protocol; 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 offshore entry
person who makes a claim for protection under the Refugees Convention as
amended by the Refugees Protocol; 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 offshore entry
person:
(i) who makes a claim for
protection under the Refugees Convention as amended by the Refugees Protocol;
and
(ii) who, following
assessment of his or her claim, is found not to be a person to whom Australia
owes obligations under the Refugees Convention as amended by the Refugees
Protocol;
then:
(d) subsection (3) does not apply
to a disclosure to that country or to a body of that country; and
(e) subsection (4) does not apply
to a disclosure to a body or country that may disclose the identifying
information to that foreign country or to a body of that country.
Note: See subsection 5(9) for when an application is
finally determined.
336FA
Disclosure of certain personal identifiers to selected individuals
(1) For the purposes of paragraph 336E(2)(j),
this section authorises the disclosure, by an officer, of identifying
information that relates to a person (the subject) if:
(a) the information disclosed is a
personal identifier within the meaning of paragraph (b), (c), (d) or (f)
of the definition of personal identifier in subsection 5A(1); and
(b) the disclosure is made to an
individual; and
(c) the disclosure is for the purpose
of obtaining the individual’s help to do one or more of the following in
connection with the administration of this Act:
(i) identify, authenticate
the identity of, or locate, the subject;
(ii) refer the officer to
another person who might be able to help identify, authenticate the identity
of, or locate, the subject; and
(d) the officer has reasonable grounds
to believe that the individual might be able to provide the help that is the
purpose of the officer’s disclosure; and
(e) the officer is satisfied that it
is reasonably necessary to make the disclosure to the individual in order to
obtain that help.
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 (within the meaning of the Privacy Act 1988)
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)
and (e) 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) and (e) 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 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 must not authorise disclosure
of the personal identifier unless:
(a) the Secretary 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 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 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 is
satisfied that the subject cannot be found; and
(c) the Secretary has considered the
sensitivity of the personal identifier that is to be disclosed; and
(d) the Secretary 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 (within
the meaning of the Privacy Act 1988) that is not identifying information
is to be disclosed together with the personal identifier—the Secretary 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 is entitled to
be satisfied that the subject has no views in relation to it.
(4) If the Secretary 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:
(a) paragraph (1)(d) of
Information Privacy Principle 11 in section 14 of the Privacy Act 1988;
and
(b) paragraph 2.1(g) of National
Privacy Principle 2 in Schedule 3 to the Privacy Act 1988;
the disclosure by a person of personal information (within
the meaning of the Privacy Act 1988) about another person (the subject)
is taken to be a disclosure that is authorised by law if:
(c) the person is disclosing a
personal identifier of the subject and the disclosure is authorised by section 336FC;
and
(d) the personal information is
disclosed together with the personal identifier; and
(e) the disclosure of the personal
information is for the purpose mentioned in paragraph 336FC(1)(b).
(2) This section does not apply to personal
information that is identifying information.
Division 4—Modifying and impairing identifying information
336G
Unauthorised modification of identifying information
A person commits an offence if:
(a) the person causes any unauthorised
modification of identifying information; and
(b) the person intends to cause the
modification; and
(c) the person knows that the
modification is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
336H
Unauthorised impairment of identifying information
A person commits an offence if:
(a) the person causes any unauthorised
impairment of:
(i) the reliability of
identifying information; or
(ii) the security of the
storage of identifying information; or
(iii) the operation of a
system by which identifying information is stored; and
(b) the person intends to cause the
impairment; and
(c) the person knows that the
impairment is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
336J
Meanings of unauthorised modification and unauthorised impairment etc.
(1) In this Part:
(a) modification of identifying
information; or
(b) impairment of the reliability of
identifying information; or
(c) impairment of the security of the
storage of identifying information; or
(d) impairment of the operation of a
system by which identifying information is stored;
by a person is unauthorised if the person is not entitled
to cause that modification or impairment.
(2) Any such modification or impairment
caused by the person is not unauthorised merely because he or she has an
ulterior purpose for causing it.
(3) For the purposes of an offence under this
Part, a person causes any such unauthorised modification or impairment if the
person’s conduct substantially contributes to it.
(4) For the purposes of subsection (1),
if:
(a) a person causes any modification
or impairment of a kind mentioned in that subsection; and
(b) the person does so under a warrant
issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or
impairment.
Division 5—Destroying identifying information
336K
Destroying identifying information
(1) A person commits an offence if:
(a) the person is the responsible
person for identifying information; and
(b) the identifying information is not
of a kind that may, under section 336L, be indefinitely retained; and
(c) the person fails to destroy the
identifying information as soon as practicable after the person is no longer
required under the Archives Act 1983 to keep the identifying
information.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
Note: See section 24 of the Archives Act
1983 (particularly paragraphs 24(2)(b) and (c)) on the obligation to keep
the identifying information.
(2) This section does not apply if the
identifying information is:
(a) a personal identifier that is any
of the following:
(i) a measurement of a
person’s height and weight;
(ii) a photograph or other
image of a person’s face and shoulders;
(iii) a person’s signature;
or
(b) identifying information derived
from or relating to such a personal identifier.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) For the purposes of this section, the responsible
person for identifying information is:
(a) if the identifying information is
stored on a database—the person who has day‑to‑day control of the
database; or
(b) otherwise—the person who has day‑to‑day
responsibility for the system under which the identifying information is
stored.
(4) Identifying information is destroyed
if:
(a) in the case of identifying
information that is a personal identifier—it is physically destroyed; and
(b) in any other case—any means of
identifying it with the person to whom it relates is destroyed.
336L
Identifying information that may be indefinitely retained
(1) Identifying information may be
indefinitely retained if the non‑citizen to whom it relates:
(a) is, or has ever been, in
immigration detention; or
(b) has ever had an application for a
visa refused, or has ever had a visa cancelled; or
(c) has ever:
(i) entered Australia on a
temporary visa; and
(ii) since its expiry,
remained in Australia as an unlawful non‑citizen; or
(d) has ever been convicted of an
offence against this Act or the regulations; or
(e) has ever been subject to action
taken under this Act or the regulations for the purpose of:
(i) deporting the non‑citizen;
or
(ii) removing the non‑citizen
from Australia; or
(f) is a person in respect of whom
the Minister has issued a conclusive certificate under subsection (4).
(2) Paragraph (1)(a) does not apply in
relation to detention that occurs only because the non‑citizen is, or
was, detained for questioning detention (see section 192). However, this
subsection does not apply if the detention leads to detention under section 189
because of the application of subsection 190(2).
(3) Paragraph (1)(b) does not apply if
the decision to refuse the application for the visa, or to cancel the visa, was
set aside on a review.
(4) The Minister may issue a conclusive
certificate in respect of a non‑citizen if the Minister is satisfied
that:
(a) the non‑citizen is a threat
to the security of the Commonwealth or of a State or Territory; or
(b) it is in the public interest to do
so.
(5) The power under subsection (4) may
only be exercised by the Minister personally.
Part 5—Review of decisions
Division 1—Interpretation
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.
member means a member of the Tribunal.
MRT‑reviewable decision has the meaning
given in Division 2.
nominated has the same meaning as in the
regulations.
presiding member, in relation to a review by
the Tribunal, means:
(a) if the Tribunal is, for the
purposes of review, constituted by 2 or 3 members—the member who, in accordance
with section 357, is to preside at the review; or
(b) if the Tribunal is, for the
purpose of the review, constituted by one member—that member.
Principal Member means the Principal Member
of the Tribunal.
Registrar means the Registrar of the
Tribunal.
sponsored has the same meaning as in the
regulations.
Senior Member means a Senior Member of the
Tribunal.
Tribunal means the Migration Review Tribunal.
Division 2—Decisions reviewable by Migration Review Tribunal
338
Decisions reviewable by Migration Review Tribunal
(1) A decision is an MRT‑reviewable
decision if this section so provides, unless:
(a) the Minister has issued a
conclusive certificate under section 339 in relation to the decision; or
(b) the decision is an RRT‑reviewable
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 an MRT‑reviewable decision if:
(a) the visa could be granted while
the non‑citizen is in the migration zone; and
(b) the non‑citizen made the
application for the visa while in the migration zone; and
(c) the decision was not made when the
non‑citizen:
(i) was in immigration
clearance; or
(ii) had been refused
immigration clearance and had not subsequently been immigration cleared; and
(d) where it is a criterion for the
grant of the visa that the non‑citizen is sponsored by an approved
sponsor, and the visa is a temporary visa of a kind (however described)
prescribed for the purposes of this paragraph:
(i) the non‑citizen
is sponsored by an approved sponsor at the time the application to review the
decision to refuse to grant the visa is made; or
(ii) an application for
review of a decision not to approve the sponsor has been made, but, at the time
the application to review the decision to refuse to grant the visa is made,
review of the sponsorship decision is pending.
(3) A decision to cancel a visa held by a non‑citizen
who is in the migration zone at the time of the cancellation is an MRT‑reviewable
decision unless the decision:
(a) is covered by subsection (4);
or
(b) is made at a time when the non‑citizen
was in immigration clearance; or
(c) was made under subsection 134(1),
(3A) or (4) or section 501.
(3A) A decision under section 137L not to
revoke the cancellation of a non‑citizen’s visa is an MRT‑reviewable
decision if the non‑citizen was in the migration zone when the
decision was made.
(4) The
following decisions are MRT‑reviewable decisions:
(a) a decision to refuse to grant a
bridging visa to a non‑citizen who is in immigration detention because of
that refusal;
(b) a decision to cancel a bridging
visa held by a non‑citizen who is in immigration detention because of
that cancellation.
(5) A decision to refuse to grant a non‑citizen
a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not
be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required
by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen;
or
(ii) a company that
operates in the migration zone; or
(iii) a partnership that
operates in the migration zone; or
(iv) the holder of a
permanent visa; or
(v) a New Zealand citizen
who holds a special category visa.
(6) A decision to refuse to grant a non‑citizen
a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not
be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the
visa is that the non‑citizen has been an Australian permanent resident;
and
(c) a parent, spouse, child, brother
or sister of the non‑citizen is an Australian citizen or an Australian
permanent resident.
(7) A decision to refuse to grant a non‑citizen
a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not
be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the
visa is that the non‑citizen intends to visit an Australian citizen, or
an Australian permanent resident, who is a parent, spouse, child, brother or
sister of the non‑citizen; and
(c) particulars of the relative
concerned are included in the application.
(7A) A decision to refuse to grant a non‑citizen
a permanent visa is an MRT‑reviewable decision if:
(a) the non‑citizen made the
application for the visa at a time when the non‑citizen was outside the
migration zone; and
(b) the visa is a visa that could be
granted while the non‑citizen is either in or outside the migration zone.
(8) A
decision, under section 93, as to the assessed score of an applicant for a
visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not
be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a
criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen;
or
(ii) the holder of a
permanent visa; or
(iii) a New Zealand citizen
who holds a special category visa; and
(c) the Minister has not refused to
grant the visa.
(9) A decision that is prescribed for the
purposes of this subsection is an MRT‑reviewable decision.
339
Conclusive certificates
The Minister may issue a conclusive
certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the
national interest to change the decision; or
(b) it would be contrary to the
national interest for the decision to be reviewed.
Division 3—Review of decisions by Migration Review Tribunal
347
Application for review by Migration Review Tribunal
(1) An application for review of an MRT‑reviewable
decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within
the prescribed period, being a period ending not later than:
(i) if the MRT‑reviewable
decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after
the notification of the decision; or
(ii) if the MRT‑reviewable
decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the
notification of the decision; or
(iii) if the MRT‑reviewable
decision is covered by subsection 338(9)—the number of days prescribed, in respect
of the kind of decision in question prescribed for the purposes of that
subsection, after the notification of the decision; and
(c) be accompanied by the prescribed
fee (if any).
(2) An application for review may only be
made by:
(a) if the MRT‑reviewable
decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen
who is the subject of that decision; or
(b) if the MRT‑reviewable
decision is covered by subsection 338(5) or (8)—the sponsor or nominator
referred to in the subsection concerned; or
(c) if the MRT‑reviewable
decision is covered by subsection 338(6) or (7)—the relative referred to in the
subsection concerned; or
(d) if the MRT‑reviewable
decision is covered by subsection 338(9)—the person prescribed in respect of the
kind of decision in question prescribed for the purposes of that subsection.
(3) If the MRT‑reviewable
decision was covered by subsection 338(2), (3), (3A) or (4), an application for
review may only be made by a non‑citizen who is physically present in the
migration zone when the application for review is made.
(3A) If the primary decision was covered by
subsection 338(7A), an application for review may only be made by a non‑citizen
who:
(a) was physically present in the
migration zone at the time when the decision was made; and
(b) is physically present in the
migration zone when the application for review is made.
(4) If the MRT‑reviewable decision was
covered by subsection 338(4), the approved form for an application for review
must include a statement advising the applicant that the applicant may:
(a) request the opportunity to appear
before the Tribunal; and
(b) request the Tribunal to obtain
oral evidence from a specified person or persons.
A request must be made in the approved form and must accompany
the application for review.
(5) Regulations made for the purposes of paragraph (1)(b)
may specify different periods in relation to different classes of MRT‑reviewable
decisions (which may be decisions that relate to non‑citizens in a
specified place).
348
Migration Review Tribunal must review decisions
(1) Subject to subsection (2), if an
application is properly made under section 347 for review of an MRT‑reviewable
decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue
to review, a decision in relation to which the Minister has issued a conclusive
certificate under section 339.
349
Powers of Migration Review Tribunal
(1) The Tribunal may, for the purposes of the
review of an MRT‑reviewable decision, exercise all the powers and
discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a
prescribed matter—remit the matter for reconsideration in accordance with such
directions or recommendations of the Tribunal as are permitted by the
regulations; or
(d) set the decision aside and
substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and
substitutes a new decision;
the decision as varied or substituted is taken (except for
the purpose of appeals from decisions of the Tribunal) to be a decision of the
Minister.
(4) To avoid doubt, the Tribunal must not, by
varying a decision or setting a decision aside and substituting a new decision,
purport to make a decision that is not authorised by the Act or the
regulations.
350
Review of assessments made under section 93
(1) In reviewing an assessment of the
Minister under section 93, the only regulations for the purpose of that
section which the Tribunal is to have regard to are whichever of the following
are more favourable to the applicant:
(a) the regulations for that purpose
that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose
that are in force at the time the decision was made by the Tribunal about the
assessment.
(2) In
determining whether the regulations mentioned in paragraph (1)(a) or
(1)(b) are more favourable to the applicant, the only applicable pass mark and
applicable pool mark that the Tribunal may have regard to are:
(a) in relation to regulations covered
by paragraph (1)(a)—the applicable pass mark and the applicable pool mark
that applied at the time the assessment was made by the Minister; and
(b) in relation to regulations covered
by paragraph (1)(b)—the applicable pass mark and the applicable pool mark
that applied at the time the decision is made by the Tribunal about the
assessment.
351
Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the
public interest to do so, the Minister may substitute for a decision of the
Tribunal under section 349 another decision, being a decision that is more
favourable to the applicant, whether or not the Tribunal had the power to make
that other decision.
(2) In exercising the power under subsection (1),
the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2
or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may
only be exercised by the Minister personally.
(4) If the Minister substitutes a decision
under subsection (1), he or she is to cause to be laid before each House
of the Parliament a statement that:
(a) sets out the decision of the
Tribunal; and
(b) sets out the decision substituted
by the Minister; and
(c) sets out the reasons for the
Minister’s decision, referring in particular to the Minister’s reasons for
thinking that his or her actions are in the public interest.
(5) A
statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned—the name of that other person.
(6) A statement under subsection (4) is
to be laid before each House of the Parliament within 15 sitting days of that
House after:
(a) if the decision is made between 1 January
and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July
and 31 December (inclusive) in a year—1 January in the following
year.
(7) The Minister does not have a duty to
consider whether to exercise the power under subsection (1) in respect of
any decision, whether he or she is requested to do so by the applicant or by
any other person, or in any other circumstances.
352
Secretary to be notified of application for review by Migration Review Tribunal
(1) If an application for review is made to
the Migration Review Tribunal, the Registrar must, as soon as practicable, give
the Secretary written notice of the making of the application.
(2) Subject to subsection (3), the
Secretary must, within 10 working days after being notified of the application,
give to the Registrar the prescribed number of copies of a statement about the
decision under review that:
(a) sets out the findings of fact made
by the person who made the decision; and
(b) refers to the evidence on which
those findings were based; and
(c) gives the reasons for the
decision.
(3) If the application is for review of an
MRT‑reviewable decision covered by subsection 338(4), the Secretary must
comply with the requirements of subsection (2) within 2 working days after
being notified of the application.
(4) The Secretary must, as soon as is
practicable after being notified of the application, give to the Registrar each
other document, or part of a document, that is in the Secretary’s possession or
control and is considered by the Secretary to be relevant to the review of the
decision.
Division 4—Exercise of Tribunal’s powers
353
Tribunal’s way of operating
(1) The Tribunal shall, in carrying out its
functions under this Act, pursue the objective of providing a mechanism of
review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) shall act according to substantial
justice and the merits of the case.
353A
Principal Member may give directions
(1) The Principal Member may, in writing,
give directions, not inconsistent with this Act or the regulations, as to:
(a) the operation of the Tribunal; and
(b) the conduct of reviews by the
Tribunal.
(2) In particular, the directions may relate
to the application of efficient processing practices to the conduct of reviews
by the Tribunal.
(3) The Tribunal should, as far as
practicable, comply with the directions. However, non‑compliance by the
Tribunal with any direction does not mean that the Tribunal’s decision on a
review is an invalid decision.
(4) If the Tribunal deals with a review of a
decision in a way that complies with the directions, the Tribunal is not
required to take any other action in dealing with the review.
354
Constitution of Tribunal for exercise of powers
(1) For the
purpose of a particular review, the Tribunal shall be constituted, in
accordance with a direction under subsection (2), by:
(a) a single member;
(b) 2 members; or
(c) 3 members.
(2) The Principal Member, or a Senior Member
acting in accordance with guidelines under subsection (3), may give a
written direction about who is to constitute the Tribunal for the purpose of a
particular review.
(3) The Principal Member may give to the Senior
Members written guidelines for the giving of directions by Senior Members about
who is to constitute the Tribunal for the purpose of particular reviews.
355
Reconstitution of Tribunal—unavailability of member
(1) This section applies where a member who
constitutes the Tribunal, or who is one of the members who constitute the
Tribunal, for the purposes of a particular review (in this section called the
unavailable member):
(a) stops being a member; or
(b) for any reason, is not available
for the purpose of the review at the place where the review is being conducted.
(2) If the unavailable member constitutes the
Tribunal, the Principal Member shall direct another member or members to
constitute the Tribunal for the purpose of finishing the review.
(3) If the unavailable member is one of the
members who constitute the Tribunal, the Principal Member shall either:
(a) direct that the Tribunal is to be
constituted for the purposes of finishing the review by the remaining member or
members; or
(b) direct that the Tribunal is to be
constituted for that purpose by the remaining member or members together with
another member or members.
(4) Where a direction under subsection (2)
or (3) is given, the Tribunal as constituted in accordance with the direction shall
continue and finish the review and may, for that purpose, have regard to any
record of the proceedings of the review made by the Tribunal as previously
constituted.
(5) In exercising powers under this section,
the Principal Member shall have regard to the objective set out in subsection
353(1).
355A
Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that the
Tribunal constituted for the purpose of a particular review be reconstituted by
either or both of the following:
(a) adding one or more members to the
Tribunal as previously constituted for the purpose of the review;
(b) removing one or more members from
the Tribunal as so constituted;
if the Principal Member thinks the reconstitution is in
the interests of achieving the efficient conduct of the review in accordance
with the objective set out in subsection 353(1).
(2) However, the Principal Member must not
give such a direction unless:
(a) the Tribunal’s decision on the
review has not been recorded in writing or given orally; and
(b) the Principal Member has
consulted:
(i) the member, or each
member, who constitutes the Tribunal; and
(ii) a Senior Member who is
not the member, or one of the members, who constitutes the Tribunal; and
(c) either:
(i) the Principal Member
is satisfied that there is insufficient material before the Tribunal for the
Tribunal to reach a decision on the review; or
(ii) a period equal to or
longer than the period prescribed for the purposes of this subparagraph has
elapsed since the Tribunal was constituted.
(3) If a direction under this section is
given, the Tribunal as constituted in accordance with the direction is to
continue and finish the review and may, for that purpose, have regard to any
record of the proceedings of the review made by the Tribunal as previously
constituted.
356
Exercise of Tribunal’s powers
(1) Where the Tribunal is constituted for the
purpose of a review by 3 members, any question before the Tribunal shall be
decided according to the opinion of the majority of those members.
(2) Where the Tribunal is constituted for the
purpose of a review by 2 members, any question to be decided on the review
shall be decided:
(a) if the 2 members are of the same
opinion—according to that opinion; or
(b) in any other case—according to the
opinion of the presiding member.
357
Presiding member
(1) This section applies in relation to a
review by the Tribunal where the Tribunal is constituted for the purpose of the
review by 2 or 3 members.
(2) If the Principal Member is one of the
members of the Tribunal as constituted for the purpose of the review, the
Principal Member shall preside at the review.
(3) If the Tribunal as constituted for the
purpose of the review:
(a) does not include the Principal
Member; and
(b) includes one, and only one, Senior
Member;
the Senior Member shall preside at the review.
(4) If neither subsection (2) nor (3)
applies, the Principal Member shall designate one of the members who constitute
the Tribunal for the purposes of the review as the member who is to preside at
the review.
Division 5—Conduct of review
357A
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an
exhaustive statement of the requirements of the natural justice hearing rule in
relation to the matters it deals with.
(2) Sections 375, 375A and 376 and
Division 8A, in so far as they relate to this Division, are taken to be an
exhaustive statement of the requirements of the natural justice hearing rule in
relation to the matters they deal with.
(3) In applying this Division, the Tribunal
must act in a way that is fair and just.
358
Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal
may give the Tribunal:
(a) a written statement in relation to
any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the
issues arising in relation to the decision under review.
(2) The Secretary may give the Tribunal
written argument relating to the issues arising in relation to the decision
under review.
359
Tribunal may seek additional information
(1) In conducting the review, the Tribunal
may get any information that it considers relevant. However, if the Tribunal
gets such information, the Tribunal must have regard to that information in
making the decision on the review.
(2) Without limiting subsection (1), the
Tribunal may invite a person to give additional information.
(3) If an invitation is given to a person
other than the Secretary, the invitation must be given:
(a) except where paragraph (b)
applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a
person in immigration detention—by a method prescribed for the purposes of
giving documents to such a person.
(4) If an invitation is given to the
Secretary, the invitation must be given by one of the methods specified in
section 379B.
359AA
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the
Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to
the applicant clear particulars of any information that the Tribunal considers
would be the reason, or a part of the reason, for affirming the decision that
is under review; and
(b) if the Tribunal does so—the
Tribunal must:
(i) ensure, as far as is
reasonably practicable, that the applicant understands why the information is
relevant to the review, and the consequences of the information being relied on
in affirming the decision that is under review; and
(ii) orally invite the
applicant to comment on or respond to the information; and
(iii) advise the applicant
that he or she may seek additional time to comment on or respond to the
information; and
(iv) if the applicant seeks
additional time to comment on or respond to the information—adjourn the review,
if the Tribunal considers that the applicant reasonably needs additional time
to comment on or respond to the information.
359A Information
and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3),
the Tribunal must:
(a) give to the applicant, in the way
that the Tribunal considers appropriate in the circumstances, clear particulars
of any information that the Tribunal considers would be the reason, or a part
of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably
practicable, that the applicant understands why it is relevant to the review,
and the consequences of it being relied on in affirming the decision that is
under review; and
(c) invite the applicant to comment on
or respond to it.
(2) The information and invitation must be
given to the applicant:
(a) except where paragraph (b)
applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration
detention—by a method prescribed for the purposes of giving documents to such a
person.
(3) The Tribunal is not obliged under this
section to give particulars of information to an applicant, nor invite the
applicant to comment on or respond to the information, if the Tribunal gives
clear particulars of the information to the applicant, and invites the
applicant to comment on or respond to the information, under
section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the
applicant or another person and is just about a class of persons of which the
applicant or other person is a member; or
(b) that the applicant gave for the
purpose of the application for review; or
(ba) that the applicant gave during the
process that led to the decision that is under review, other than such
information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable
information.
359B Requirements
for written invitation etc.
(1) If a person is:
(a) invited under section 359 to
give additional information; or
(b) invited under section 359A to
comment on or respond to information;
the invitation is to specify the way in which the
additional information, or the comments or the response, may be given, being
the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional
information, or comments or a response, otherwise than at an interview, the
information, or the comments or the response, are to be given within a period
specified in the invitation, being a prescribed period or, if no period is
prescribed, a reasonable period.
(3) If the invitation is to give information,
or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the
invitation; and
(b) at a time specified in the
invitation, being a time within a prescribed period or, if no period is
prescribed, a reasonable period.
(4) If a person is to respond to an invitation
within a prescribed period, the Tribunal may extend that period for a
prescribed further period, and then the response is to be made within the
extended period.
(5) If a person is to respond to an
invitation at an interview at a time within a prescribed period, the Tribunal
may change that time to:
(a) a later time within that period;
or
(b) a time within that period as
extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the
new time.
359C
Failure to give additional information, comments or response in response to
written invitation
(1) If a person:
(a) is invited under section 359
to give additional information; and
(b) does not give the information
before the time for giving it has passed;
the Tribunal may make a decision on the review without
taking any further action to obtain the additional information.
(2) If the
applicant:
(a) is invited under section 359A
to comment on or respond to information; and
(b) does not give the comments or the
response before the time for giving them has passed;
the Tribunal may make a decision on the review without
taking any further action to obtain the applicant’s views on the information.
360
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to
appear before the Tribunal to give evidence and present arguments relating to
the issues arising in relation to the decision under review.
(2) Subsection (1)
does not apply if:
(a) the Tribunal considers that it
should decide the review in the applicant’s favour on the basis of the material
before it; or
(b) the applicant consents to the
Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies
to the applicant.
(3) If any of the paragraphs in subsection (2)
of this section apply, the applicant is not entitled to appear before the
Tribunal.
360A
Notice of invitation to appear
(1) If the applicant is invited to appear
before the Tribunal, the Tribunal must give the applicant notice of the day on
which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the
applicant:
(a) except where paragraph (b)
applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration
detention—by a method prescribed for the purposes of giving documents to such a
person.
(4) The period of notice given must be at
least the prescribed period or, if no period is prescribed, a reasonable
period.
(5) The notice must contain a statement of
the effect of section 362B.
361
Applicant may request Tribunal to call witness and obtain written material
(1) In the
notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to
appear before the Tribunal to give evidence and present arguments relating to
the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2)
and (2A) of this section.
(2) The applicant may, within 7 days after being
notified under subsection (1), give the Tribunal written notice that the
applicant wants the Tribunal to obtain oral evidence from a person or persons
named in the notice.
(2A) The
applicant may, within 7 days after being notified under subsection (1),
give the Tribunal written notice that the applicant wants the Tribunal to
obtain:
(a) written evidence from a person or
persons named in the notice; or
(b) other written material relating to
the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an
applicant under subsection (2) or (2A), the Tribunal must have regard to
the applicant’s notice but is not required to comply with it.
(4) This section does not apply to the review
of a decision covered by subsection 338(4).
362
Applicant may request Tribunal to call witnesses
(1) This
section applies to the review of a decision covered by subsection 338(4) if:
(a) the applicant, in a request in the
approved form that accompanied the application, requested the Tribunal to:
(i) give the applicant the
opportunity to appear before it; or
(ii) obtain oral evidence
from a specified person or persons; and
(b) the applicant has been invited to
appear before the Tribunal in relation to the decision under review.
(2) If this section applies, the Tribunal:
(a) must have regard to the
applicant’s request; but
(b) is not required to obtain evidence
(oral or otherwise) from a person named in the applicant’s request.
(3) To avoid doubt, nothing in this Division
requires the Tribunal to adjourn the review or to delay making a decision so
that:
(a) the applicant may give evidence
(oral or otherwise); or
(b) the Tribunal may obtain evidence
(oral or otherwise) from any other person.
362A
Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3)
of this section and sections 375A and 376, the applicant, and any
assistant under section 366A, are entitled to have access to any written
material, or a copy of any written material, given or produced to the Tribunal
for the purposes of the review.
(2) This section does not override any
requirements of the Privacy Act 1988. In particular, this section is not
to be taken, for the purposes of that Act, to require or authorise the disclosure
of information.
(3) This section does not apply if the
Tribunal has given the applicant a copy of the statement required by subsection
368(1).
362B
Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360
to appear before the Tribunal; and
(b) does
not appear before the Tribunal on the day on which, or at the time and place at
which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without
taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the
Tribunal from rescheduling the applicant’s appearance before it, or from
delaying its decision on the review in order to enable the applicant’s
appearance before it as rescheduled.
363
Powers of the Tribunal etc.
(1) For the purpose of the review of a
decision, the Tribunal may:
(a) take evidence on oath or
affirmation;
(b) adjourn the review from time to
time;
(c) subject to sections 377 and
378, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange
for the making of any investigation, or any medical examination, that the
Tribunal thinks necessary with respect to the review, and to give to the
Tribunal a report of that investigation or examination.
(2) The Tribunal may combine the reviews of 2
or more reviewable decisions made in respect of the same person.
(3) Subject to subsection (4), the
presiding member in relation to a review may:
(a) summon a person to appear before
the Tribunal to give evidence;
(b) summon a person to produce to the
Tribunal such documents as are referred to in the summons;
(c) require a person appearing before
the Tribunal to give evidence either to take an oath or to make an affirmation;
and
(d) administer an oath or affirmation
to a person so appearing.
(4) The presiding member shall not, for the
purposes of a review that is being conducted in Australia, summon a person
under paragraph (3)(a) or (b) unless the person is in Australia.
(5) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence that the person will give will be true.
363A
Tribunal does not have power to permit a person to do something he or she is
not entitled to do
If a provision of this Part states that
a person is not entitled to do something, or to be assisted or represented by
another person, then, unless a provision expressly provides otherwise, the
Tribunal does not have power to permit the person to do that thing, or to be
assisted or represented by another person.
364
Presiding member may authorise another person to take evidence
(1) The power
of the Tribunal under paragraph 363(1)(a) to take evidence on oath or
affirmation for the purpose of a review may be exercised on behalf of the
Tribunal by the presiding member or by:
(a) another member;
(b) a person appointed or engaged
under the Public Service Act 1999; or
(c) another person approved in writing
by the Minister for the purposes of this section;
who is authorised in writing by the presiding member.
(2) The power of the Tribunal may be
exercised pursuant to subsection (1):
(a) inside or outside Australia; and
(b) subject to such limitations (if
any) as are specified by the presiding member.
(3) Where a
person other than a presiding member is authorised under subsection (1) to
take evidence for the purpose of a review:
(a) the
person has, for the purpose of taking that evidence:
(i) all the powers of the
Tribunal under subsection 363(1); and
(ii) the power to
administer an oath or affirmation to a person appearing before the first‑mentioned
person to give evidence; and
(b) for the purpose of the exercise of
those powers by that person, this Part has effect (except where the context
otherwise requires) as if a reference to the Tribunal, or to the presiding
member, in relation to the review included a reference to that person.
(4) Where a person (other than a member of
the Tribunal as constituted for the purpose of the review) exercises the power
of the Tribunal to take evidence on oath or affirmation for the purpose of a
review, the person shall cause a written record of the evidence taken to be
made and sent to the presiding member.
(5) Where the
presiding member receives, pursuant to subsection (4), a record of
evidence given by the applicant, the Tribunal shall, for the purposes of
section 360, be taken to have given the applicant an opportunity to appear
before it to give evidence.
365
Review to be in public
(1) Subject to this section, any oral
evidence that the Tribunal takes while a person is appearing before it must be
taken in public.
(2) Where the Tribunal is satisfied that it
is in the public interest to do so, the Tribunal may direct that particular
oral evidence, or oral evidence for the purposes of a particular review, is to
be taken in private.
(3) If the Tribunal is satisfied that it is
impracticable to take particular oral evidence in public, the Tribunal may
direct that the evidence is to be taken in private.
(4) Where the Tribunal gives a direction
under subsection (2) or (3), it may give directions as to the persons who
may be present when the oral evidence is given.
366
Oral evidence by telephone etc.
(1) For the purposes of the review of a
decision, the Tribunal may allow an appearance by the applicant before the
Tribunal, or the giving of evidence by the applicant or any other person, to be
by:
(a) telephone; or
(b) closed‑circuit television;
or
(c) any other means of communication.
(2) If, when a review is in public, a person
appears or gives evidence by a means allowed under subsection (1), the
Tribunal must take such steps as are reasonably necessary to ensure the public
nature of the review is preserved.
366A
Applicant may be assisted by another person while appearing before Tribunal
(1) The applicant is entitled, while
appearing before the Tribunal, to have another person (the assistant)
present to assist him or her.
(2) The assistant is not entitled to present
arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is
satisfied that, because of exceptional circumstances, the assistant should be
allowed to do so.
(3) Except as provided in this section, the
applicant is not entitled, while appearing before the Tribunal, to be
represented by another person.
(4) This section does not affect the
entitlement of the applicant to engage a person to assist or represent him or
her otherwise than while appearing before the Tribunal.
366B
Other persons not to be assisted or represented while appearing before Tribunal
(1) A person, other than the applicant, is
not entitled, while appearing before the Tribunal, to:
(a) have another person present to
assist him or her; or
(b) be represented by another person.
(2) This section does not affect the
entitlement of the person to engage a person to assist or represent him or her
otherwise than while appearing before the Tribunal.
366C
Interpreters
(1) A person appearing before the Tribunal to
give evidence may request the Tribunal to appoint an interpreter for the
purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request
made by a person under subsection (1) unless it considers that the person
is sufficiently proficient in English.
(3) If the Tribunal considers that a person
appearing before it to give evidence is not sufficiently proficient in English,
the Tribunal must appoint an interpreter for the purposes of communication
between the Tribunal and the person, even though the person has not made a
request under subsection (1).
366D
Examination and cross‑examination not permitted
A person is not entitled to examine or
cross‑examine any person appearing before the Tribunal to give evidence.
367
Certain decisions to be made within prescribed period
(1) Subject to subsection (2), if the
application is for review of an MRT‑reviewable decision covered by
subsection 338(4), the Tribunal must make its decision on review, and notify
the applicant of the decision, within the prescribed period.
(2) The Tribunal may, with the agreement of
the applicant, extend the period in subsection (1) for the purposes of a
particular application.
Division 6—Decisions of Tribunal
368
Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on
a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b),
prepare a written statement that:
(a) sets out the decision of the
Tribunal on the review;
(b) sets out the reasons for the
decision;
(c) sets out the findings on any
material questions of fact; and
(d) refers to the evidence or any
other material on which the findings of fact were based.
(3) Where the Tribunal has prepared the
written statement, the Tribunal shall:
(a) return to the Secretary any
document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any
other document that contains evidence or material on which the findings of fact
were based.
368A
Tribunal must invite parties to handing down of decision
(1) This section applies to any decision on a
review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a
person who is in immigration detention because of:
(i) a decision to refuse
to grant him or her a bridging visa; or
(ii) a decision to cancel
his or her bridging visa.
(2) The Tribunal must invite the applicant
and the Secretary to be present when the decision is handed down.
(3) The
Tribunal must give the applicant and the Secretary written notice of the day on
which, and the time and place at which, the decision is to be handed down. The
period of notice given must be at least the prescribed period or, if no period
is prescribed, a reasonable period.
(4) The notice to the applicant must:
(a) contain a statement of the effect
of subsection 368B(6); and
(b) be given to the applicant by one
of the methods specified in section 379A.
(5) The notice to the Secretary must be given
by one of the methods specified in section 379B.
368B
Tribunal decision to be handed down
(1) This section applies to any decision on a
review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a
person who is in immigration detention because of:
(i) a decision to refuse
to grant him or her a bridging visa; or
(ii) a decision to cancel
his or her bridging visa.
(2) On the day, and at the time and place,
specified in the notice referred to in section 368A, the decision on the
review is to be handed down (on behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by
the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a
person is authorised to hand down decisions.
(3) The Tribunal’s decision may be handed
down:
(a) by reading the outcome of the
decision; and
(b) whether or not either or both the
applicant and the Secretary are present.
(4) The date
of the decision is the date on which the decision is handed down.
(5) If the applicant and the Secretary are
present at the handing down of the decision, the Tribunal must give each of
them a copy of the statement prepared under subsection 368(1).
(6) If the applicant is not present at the
handing down of the decision, the Tribunal must notify the applicant of the
decision by giving the applicant a copy of the statement prepared under
subsection 368(1). The copy must be given to the applicant:
(a) within 14 days after the day on
which the decision is handed down; and
(b) by one of the methods specified in
section 379A.
(7) If the Secretary is not present at the
handing down of the decision, the Tribunal must give to the Secretary a copy of
the statement prepared under subsection 368(1). The copy must be given to the
Secretary:
(a) within 14 days after the day on
which the decision is handed down; and
(b) by one of the methods specified in
section 379B.
(8) Without limiting the generality of subsections (6)
and (7), an applicant or the Secretary is taken not to be present at the
handing down of a decision if:
(a) he or she is not at the same
location as that of the person who is handing down the decision when the
decision is handed down; and
(b) the decision is being handed down
by:
(i) telephone; or
(ii) closed‑circuit
television; or
(iii) any other means of
communication.
(9) A reference to the applicant or the
Secretary being present at the handing down of the decision includes a
reference to a representative of the applicant or Secretary being present.
368C
Applicant taken to be notified when representative notified
(1) If a representative of the applicant is
present at the handing down of a decision under section 368B, the
applicant is taken to be notified of the decision on the day on which the
decision is handed down.
(2) If a representative of the applicant is
notified of a decision under subsection 368B(6), the applicant is taken to be
notified of the decision on the day on which the representative is so notified.
368D
Tribunal must notify parties (parties not invited to handing down of decision)
(1) If the Tribunal gives an oral decision on
an application for review, the Tribunal must give the applicant and the
Secretary a copy of the statement prepared under subsection 368(1) within 14
days after the decision concerned is made. The applicant is taken to be
notified of the decision on the day on which the decision is made.
(2) If the applicant is in immigration
detention because of:
(a) a decision to refuse to grant him
or her a bridging visa; or
(b) a decision to cancel his or her
bridging visa;
the Tribunal must give the applicant and the Secretary a
copy of the statement prepared under subsection 368(1) within 14 days after the
decision concerned is made.
369
Certain Tribunal decisions to be published
Subject to any direction under section 378,
the Registrar must ensure the publication of any statements prepared under
subsection 368(1) that the Principal Member thinks are of particular interest.
Division 7—Offences
370 Failure
of witness to attend
(1) A person who has been served, as
prescribed, with a summons to appear before the Tribunal to give evidence and
tendered reasonable expenses shall not:
(a) fail to attend as required by the
summons; or
(b) fail to appear and report from day
to day unless excused, or released from further attendance, by a member.
Penalty: Imprisonment for 6 months.
(1A) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(1B) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) To avoid doubt, an invitation under
section 360 to appear before the Tribunal is not a summons to appear
before the Tribunal to give evidence.
371
Refusal to be sworn or to answer questions etc.
(1) A person appearing before the Tribunal to
give evidence shall not:
(a) when required under section 363
either to take an oath or to make an affirmation—refuse or fail to comply with
the requirement; or
(b) refuse or fail to answer a
question that the person is required to answer by the presiding member.
Penalty: Imprisonment for 6 months.
(1A) Subsection (1)
does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(2) Subject to
section 375, a person shall not, refuse or fail to produce a document that
a person is required to produce by a summons under section 363 served on
the person as prescribed.
Penalty: Imprisonment for 6 months.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(2B) An offence against subsection (1) or
(2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person
appearing before the Tribunal to give evidence shall not intentionally give
evidence that is false or misleading in a material particular.
Penalty for a contravention of this subsection:
Imprisonment for 12 months.
372
Contempt of Tribunal
A person
shall not:
(a) obstruct
or hinder the Tribunal or a member in the performance of the functions of the
Tribunal; or
(b) disrupt
the taking of evidence by the Tribunal.
Penalty: Imprisonment for 12 months.
Division 8—Miscellaneous
373
Protection of members and persons giving evidence
(1) A member has, in the performance of his
or her duties as a member, the same protection and immunity as a member of the
Administrative Appeals Tribunal.
(2) Subject to this Part, a person summoned
to attend, or appearing, before the Tribunal to give evidence has the same
protection, and is, in addition to the penalties provided by this Part, subject
to the same liabilities, as a witness in proceedings in the Administrative Appeals
Tribunal.
374
Fees for persons giving evidence
(1) A person, other than the applicant,
summoned to appear before the Tribunal to give evidence is entitled to be paid,
in respect of his or her attendance, fees, and allowances for expenses, fixed
by or in accordance with the regulations.
(2) The fees and allowances shall be paid:
(a) where the applicant notifies the
Tribunal under subsection 361(2) that he or she wants the Tribunal to obtain
evidence from the person—by the applicant; and
(b) in any other case—by the
Commonwealth.
375
Restrictions on disclosure of certain information etc.
In spite of anything else in this Act,
the Secretary shall not give to the Tribunal a document, or information, if the
Minister certifies, in writing, that the disclosure of any matter contained in
the document, or the disclosure of the information, would be contrary to the
public interest:
(a) because it would prejudice the
security, defence or international relations of Australia; or
(b) because it would involve the
disclosure of deliberations or decisions of the Cabinet or of a committee of
the Cabinet.
375A
Certain information only to be disclosed to Tribunal
(1) This section applies to a document or
information if the Minister:
(a) has certified, in writing, that
the disclosure, otherwise than to the Tribunal, of any matter contained in the
document, or of the information, would be contrary to the public interest for
any reason specified in the certificate (other than a reason set out in
paragraph 375(a) or (b)); and
(b) has included in the certificate a
statement that the document or information must only be disclosed to the
Tribunal.
(2) If, pursuant to a requirement of or under
this Act, the Secretary gives to the Tribunal a document or information to which
this section applies:
(a) the Secretary must notify the
Tribunal in writing that this section applies to the document or information;
and
(b) the Tribunal must do all things
necessary to ensure that the document or information is not disclosed to any
person other than a member of the Tribunal as constituted for the purposes of
the particular review.
376
Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or
information if:
(a) the Minister:
(i) has certified, in
writing, that the disclosure of any matter contained in the document, or of the
information, would be contrary to the public interest for any reason specified
in the certificate (other than a reason set out in paragraph 375(a) or (b))
that could form the basis for a claim by the Crown in right of the Commonwealth
in a judicial proceeding that the matter contained in the document, or the
information, should not be disclosed; and
(ii) has not included a
statement in the certificate that the document or information must only be
disclosed to the Tribunal; or
(b) the document, the matter contained
in the document, or the information was given to the Minister, or to an officer
of the Department, in confidence and section 375A does not apply to the
document or information.
(2) Where, pursuant to a requirement of or
under this Act, the Secretary gives to the Tribunal a document or information
to which this section applies, the Secretary:
(a) shall notify the Tribunal in
writing that this section applies in relation to the document or information;
and
(b) may give the Tribunal any written
advice that the Secretary thinks relevant about the significance of the
document or information.
(3) Where the Tribunal is given a document or
information and is notified that this section applies in relation to it, the
Tribunal:
(a) may, for the purpose of the
exercise of its powers, have regard to any matter contained in the document, or
to the information; and
(b) may, if the Tribunal thinks it
appropriate to do so having regard to any advice given by the Secretary
pursuant to subsection (2), disclose any matter contained in the document,
or the information, to the applicant or to any other person who has given oral
or written evidence to the Tribunal.
377
Disclosure of confidential information
(1) This section applies to a person who is
or has been:
(a) a member of the Tribunal;
(b) a person acting as a member of the
Tribunal;
(c) an officer of the Tribunal; or
(d) a person providing interpreting
services in connection with a review by the Tribunal.
(2) This section applies to information or a
document if the information or document concerns a person and is obtained by a
person to whom this section applies in the course of performing functions or
duties or exercising powers under this Act.
(3) A person
to whom this section applies shall not:
(a) make a record of any information
to which this section applies; or
(b) divulge or communicate to any
person any information to which this section applies;
unless the record is made or the information is divulged
or communicated:
(c) for the purposes of this Act; or
(d) for
the purposes of, or in connection with, the performance of a function or duty
or the exercise of a power under this Act.
Penalty: Imprisonment for 2 years.
(4) Subsection (3) applies to the
divulging or communicating of information whether directly or indirectly.
(5) A person to whom this section applies
shall not be required:
(a) to produce in a court any document
to which this section applies; or
(b) to divulge or communicate to any
court any information to which this section applies;
except where it is necessary to do so for the purposes of
carrying into effect the provisions of this Act.
(6) Nothing in this section affects a right
that a person has under the Freedom of Information Act 1982.
(7) For the purposes of this section, a
person who is providing interpreting services in connection with a review by
the Tribunal shall be taken to be performing a function under this Act.
(8) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
produce includes permit access to.
378
Tribunal may restrict publication of certain matters
(1) Where the
Tribunal is satisfied, in relation to a review, that it is in the public
interest that:
(a) any evidence given before the
Tribunal;
(b) any information given to the
Tribunal; or
(c) the
contents of any document produced to the Tribunal;
should not be published, or should not be published except
in a particular manner and to particular persons, the Tribunal may give a
written direction accordingly.
(2) Where the Tribunal has given a direction
under subsection (1) in relation to the publication of any evidence or
information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its
obligations under section 368; or
(b) prevent a person from
communicating to another person a matter contained in the evidence, information
or document if the first‑mentioned person has knowledge of the matter
otherwise than because of the evidence or the information having been given or
the document having been produced to the Tribunal.
(3) A person
shall not contravene a direction given by the Tribunal under subsection (1)
that is applicable to the person.
Penalty: Imprisonment for 2 years.
379
Sittings of Tribunal
(1) Sittings of the Tribunal shall be held
from time to time as required, in such places in Australia as are convenient.
(2) The Tribunal constituted by a member or
members may sit and exercise the powers of the Tribunal even though the
Tribunal constituted by another member or other members is at the same time
sitting and exercising those powers.
Division 8A—Giving and receiving review documents
379AA
Giving documents by Tribunal where no requirement to do so by section 379A
or 379B method
If:
(a) a provision of this Act or the
regulations requires or permits the Tribunal to give a document to a person;
and
(b) the provision does not state that
the document must be given:
(i) by one of the methods
specified in section 379A or 379B; or
(ii) by a method prescribed
for the purposes of giving documents to a person in immigration detention;
the Tribunal may give the document to the person by any
method that it considers appropriate (which may be one of the methods mentioned
in subparagraph (b)(i) or (ii) of this section).
Note: Under section 379G an applicant may give
the Tribunal the name of an authorised recipient who is to receive documents on
the applicant’s behalf.
379A
Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this
Part or the regulations that:
(a) require or permit the Tribunal to
give a document to a person (the recipient); and
(b) state that the Tribunal must do so
by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, or a person
authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business
address
(3) Another method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, or a person
authorised in writing by the Registrar, handing the document to another person
who:
(a) is at the last residential or
business address provided to the Tribunal by the recipient in connection with
the review; and
(b) appears to live there (in the case
of a residential address) or work there (in the case of a business address);
and
(c) appears to be at least 16 years of
age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, dating the
document, and then dispatching it:
(a) within 3 working days (in the
place of dispatch) of the date of the document; and
(b) by prepaid post or by other
prepaid means; and
(c) to:
(i) the last address for
service provided to the Tribunal by the recipient in connection with the
review; or
(ii) the last residential
or business address provided to the Tribunal by the recipient in connection
with the review.
Transmission by fax, e‑mail or other electronic
means
(5) Another method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting
the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address, as the case may be, provided to the Tribunal by the
recipient in connection with the review.
379B
Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this
Part or the regulations that:
(a) require or permit the Tribunal to
give a document to the Secretary; and
(b) state that the Tribunal must do so
by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, or a person
authorised in writing by the Registrar, handing the document to the Secretary
or to an authorised officer.
Dispatch by post or by other means
(3) Another method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, dating the
document, and then dispatching it:
(a) within 3 working days (in the
place of dispatch) of the date of the document; and
(b) by post or by other means; and
(c) to an address, notified to the
Tribunal in writing by the Secretary, to which such documents can be
dispatched.
Transmission by fax, e‑mail or other electronic
means
(4) Another method consists of a member, the
Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting
the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address notified to the Tribunal in writing by the Secretary for the
purpose.
379C
When a person other than the Secretary is taken to have received a document
from the Tribunal
(1) This section applies if the Tribunal
gives a document to a person other than the Secretary by one of the methods
specified in section 379A (including in a case covered by section 379AA).
Giving by hand
(2) If the Tribunal gives a document to a
person by the method in subsection 379A(2) (which involves handing the document
to the person), the person is taken to have received the document when it is
handed to the person.
Handing to a person at last residential or business
address
(3) If the Tribunal gives a document to a
person by the method in subsection 379A(3) (which involves handing the document
to another person at a residential or business address), the person is taken to
have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a
person by the method in subsection 379A(4) (which involves dispatching the
document by prepaid post or by other prepaid means), the person is taken to
have received the document:
(a) if the document was dispatched
from a place in Australia to an address in Australia—7 working days (in the
place of that address) after the date of the document; or
(b) in any other case—21 days after
the date of the document.
Transmission by fax, e‑mail or other electronic
means
(5) If the Tribunal gives a document to a
person by the method in subsection 379A(5) (which involves transmitting the
document by fax, e‑mail or other electronic means), the person is taken
to have received the document at the end of the day on which the document is
transmitted.
(6) Subsection (5) applies despite section 14
of the Electronic Transactions Act 1999.
379D
When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal
gives a document to the Secretary by one of the methods specified in section 379B
(including in a case covered by section 379AA).
Giving by hand
(2) If the Tribunal gives a document to the
Secretary by the method in subsection 379B(2) (which involves handing the
document to the Secretary or to an authorised officer), the Secretary is taken
to have received the document when it is handed to the Secretary or to the
authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the
Secretary by the method in subsection 379B(3) (which involves dispatching the document
by post or by other means), the Secretary is taken to have received the
document:
(a) if the document was dispatched
from a place in Australia to an address in Australia—7 working days (in the
place of that address) after the date of the document; or
(b) in any other case—21 days after
the date of the document.
Transmission by fax, e‑mail or other electronic
means
(4) If the Tribunal gives a document to the
Secretary by the method in subsection 379B(4) (which involves transmitting the
document by fax, e‑mail or other electronic means), the Secretary is
taken to have received the document at the end of the day on which the document
is transmitted.
(5) Subsection (4) applies despite
section 14 of the Electronic Transactions Act 1999.
379E
Tribunal may give copies of documents
If a provision of this Act requires or
permits the Tribunal to give a document to a person, the Tribunal may instead
give a copy of the document to the person by the same means as the Tribunal
could give the document itself.
379F
Giving documents etc. to the Tribunal
(1) If, in relation to the review of an MRT‑reviewable
decision, a person is required or permitted to give a document or thing to the
Tribunal, the person must do so:
(a) by giving the document or thing to
the Registrar, a Deputy Registrar or another officer of the Tribunal; or
(b) by a method set out in directions
under section 353A; or
(c) if the regulations set out a
method for doing so—by that method.
(2) Directions under section 353A may
make provision for a person to give a copy of a document, rather than the
document itself, to the Tribunal.
379G
Authorised recipient
(1) If:
(a) a person (the applicant)
applies for review of an MRT‑reviewable decision; and
(b) the applicant gives the Tribunal
written notice of the name and address of another person (the authorised
recipient) authorised by the applicant to do things on behalf of the
applicant that consist of, or include, receiving documents in connection with
the review;
the Tribunal must give the authorised recipient, instead
of the applicant, any document that it would otherwise have given to the
applicant.
Note: If the Tribunal gives a person a document by a
method specified in section 379A, the person is taken to have received the
document at the time specified in section 379C in respect of that method.
(2) If the
Tribunal gives a document to the authorised recipient, the Tribunal is taken to
have given the document to the applicant. However, this does not prevent the
Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the
notice under paragraph (1)(b) at any time, but must not (unless the
regulations provide otherwise) vary the notice so that any more than one person
becomes the applicant’s authorised recipient.
(4) The Tribunal may communicate with the
applicant by means other than giving a document to the applicant, provided the
Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the
Tribunal giving documents to, or communicating with, the applicant when the
applicant is appearing before the Tribunal.
Division 9—Referral of decisions to Administrative Appeals Tribunal
380
Interpretation
In this Division:
AAT Act means the Administrative Appeals
Tribunal Act 1975.
381
Referral of decisions to Administrative Appeals Tribunal
(1) The Principal Member of the Migration
Review Tribunal may, if the Principal Member considers that an MRT‑reviewable
decision involves an important principle, or issue, of general application,
refer the decision to the President of the Administrative Appeals Tribunal.
(2) A referral under subsection (1) may
be made at any time:
(a) after the receipt by the Migration
Review Tribunal of an application for a review of the decisions; and
(b) before that Tribunal makes a
decision on the application.
(3) Subject to paragraph 375A(2)(b), the
following material must be sent with the referral:
(a) a request for a review by the
Administrative Appeals Tribunal of that decision;
(b) a statement of the Principal
Member’s reasons for concluding that the decision involves an important
principle, or issue, of general application;
(c) any documents or other records
that the Principal Member considers relevant.
(4) The Principal Member must give written
notice of the making of a referral under subsection (1) to the applicant
and the Secretary.
(5) The
Migration Review Tribunal must not commence any action in relation to the
proceeding before it with respect to the decision, or, if it has commenced such
action, must cease that action until notified by the President of the
Administrative Appeals Tribunal in accordance with section 382.
(6) If the President of the Administrative
Appeals Tribunal directs that the Administrative Appeals Tribunal will accept
the referral, the review by the Migration Review Tribunal is taken to be
closed.
382
Administrative Appeals Tribunal may accept or decline referral
(1) The President of the Administrative
Appeals Tribunal must consider a request under section 381 and either:
(a) direct that the Administrative
Appeals Tribunal will accept the referral of the decision; or
(b) direct that the Administrative
Appeals Tribunal will decline the referral of the decision.
(2) The President must notify the Principal
Member of the direction made under subsection (1).
(3) If the President accepts the referral of
an MRT‑reviewable decision:
(a) the application to the Migration
Review Tribunal is taken to have been properly made to the Administrative
Appeals Tribunal by the applicant to the Migration Review Tribunal; and
(b) the AAT Act applies to the review
of the MRT‑reviewable decision subject to the modifications in this
Division.
383
Modification of definition of member in section 3 of the AAT Act
Section 3 of the AAT Act applies in
relation to an MRT‑reviewable decision as if the definition of member
were omitted and the following definition substituted:
“member means a presidential member, a senior
member, or any other member of the Tribunal and includes the Principal Member
of the Migration Review Tribunal.”.
384
Modification of section 21 of the AAT Act
Section 21
of the AAT Act applies in relation to an MRT‑reviewable decision as if:
(a) subsection (1)
were omitted and the following subsections substituted:
“(1) Subject to subsection (1AA),
the Tribunal is, for the purposes of the exercise of its powers in relation to
a matter, to be constituted by:
(a) a
presidential member who is a Judge, the Principal Member of the Migration
Review Tribunal and one other member (not being a Judge); or
(b) a
Deputy President, the Principal Member of the Migration Review Tribunal and one
non‑presidential member.
“(1AA) If the Principal Member of
the Migration Review Tribunal had constituted that Tribunal, in whole or in
part, for the review by the Migration Review Tribunal of the MRT‑reviewable
decision that is the subject of a matter, the Tribunal in relation to
proceedings for the purposes of the exercise of its power in relation to that
matter, is to be constituted by:
(a) a
presidential member who is a Judge and two other members (not being Judges or
the Principal Member of the Migration Review Tribunal); or
(b) a
Deputy President and two non‑presidential members (not being the
Principal Member of the Migration Review Tribunal).”; and
(b) subsections (2), (3) and (4)
were omitted.
385
Certain sections of the AAT Act do not apply to MRT‑reviewable decisions
Sections 21A, 27, 28 and 29 of the
AAT Act do not apply in relation to MRT‑reviewable decisions.
386 Modification
of section 25 of the AAT Act
Section 25 of the AAT Act applies
in relation to an MRT‑reviewable decision as if subsections (6) and
(6A) were omitted.
387
Modification of section 30 of the AAT Act
Section 30 of the AAT Act applies
in relation to an MRT‑reviewable decision as if paragraphs (1)(a)
and (b) were omitted and the following paragraphs substituted:
“(a) the person who, under section 382
of the Migration Act 1958, is taken to have applied to the Tribunal for
review of the decision; and
(b) the person who is the Minister for
the purposes of the Migration Act 1958; and”.
388
Modification of section 37 of the AAT Act
Section 37 of the AAT Act applies
in relation to an MRT‑reviewable decision as if:
(a) subsections (1) to (1D)
(inclusive) were omitted and the following subsection substituted:
“(1) Subject to paragraph
375A(2)(b) of the Migration Act 1958, the Principal Member of the
Migration Review Tribunal must forward to the Administrative Appeals Tribunal
all documents and other records relating to the proceeding before the Migration
Review Tribunal with respect to the MRT‑reviewable decision within 14
days after receiving notice of the acceptance of the referral of the decision
to the Administrative Appeals Tribunal.
“(1A) Documents provided under
subsection 381(3) of the Migration Act 1958 are taken to have been
provided in accordance with subsection (1) of this section.”; and
(b) subsection (4) were omitted.
389
Modification of section 38 of the AAT Act
Section 38 of the AAT Act applies
in relation to an MRT‑reviewable decision as if the reference in that
section to a statement referred to in paragraph 37(1)(a) that is lodged by a
person with the Tribunal were a reference to a statement that was lodged with
the Migration Review Tribunal by a person under section 352 of the Migration
Act 1958.
390
Modification of section 43 of the AAT Act
Section 43 of the AAT Act applies
in relation to an MRT‑reviewable decision as if subsection (1) were
omitted and the following subsections were substituted:
“(1) The Tribunal may, for the purposes
of the review of an MRT‑reviewable decision, exercise all the powers and
discretions that are conferred by the Migration Act 1958 on the person
who made the decision.
“(1A) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates
to a matter prescribed for the purposes of paragraph 349(2)(c) of the Migration
Act 1958—remit the matter for reconsideration in accordance with such
directions or recommendations of the Tribunal as are permitted by the
regulations under that Act; or
(d) set the decision aside
and substitute a new decision.
“(1B) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision
and substitutes a new decision;
the decision as varied or substituted
is taken (except for the purpose of appeals from decisions of the Tribunal) to
be a decision of the Minister.
“(1C) To
avoid doubt, the Tribunal must not, by varying a decision or setting a decision
aside and substituting a new decision, purport to make a decision that is not
authorised by the Migration Act 1958 or the regulations under that
Act.”.
391
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
Administrative Appeals Tribunal in relation to an MRT‑reviewable decision
another decision, being a decision that is more favourable to the applicant,
whether or not the Administrative Appeals Tribunal had the power to make that
other decision.
(2) In exercising the power under subsection (1),
the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2
or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may
only be exercised by the Minister personally.
(4) If the Minister substitutes a decision
under subsection (1), he or she is to cause to be laid before each House
of the Parliament a statement that:
(a) sets out the decision of the Administrative
Appeals Tribunal; and
(b) sets out the decision substituted
by the Minister; and
(c) sets out the reasons for the
Minister’s decision, referring in particular to the Minister’s reasons for
thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4)
is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned—the name of that other person.
(6) A
statement under subsection (4) is to be laid before each House of the
Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January
and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July
and 31 December (inclusive) in a year—1 January in the following
year.
(7) The Minister does not have a duty to
consider whether to exercise the power under subsection (1) in respect of
any decision, whether he or she is requested to do so by the applicant or by
any other person, or in any other circumstances.
392
Provision of material to which section 376 applies
If the Migration Review Tribunal gives
to the Administrative Appeals Tribunal a document or information to which
section 376 of this Act applies, the Migration Review Tribunal must give
the Administrative Appeals Tribunal written notice of the application of that
section.
393
Section 9 of AAT Act not to apply to Principal Member
In spite of anything in this Act or in
any other enactment, section 9 of the AAT Act does not apply to the
Principal Member of the Migration Review Tribunal.
Part 6—Migration Review Tribunal
Division 1—Establishment and membership of the Migration Review Tribunal
394
Establishment of the Migration Review Tribunal
A Migration Review Tribunal is
established.
395
Membership of Migration Review Tribunal
The Migration Review Tribunal consists
of:
(a) a Principal Member; and
(b) such number (not exceeding the
prescribed number) of Senior Members as are appointed in accordance with this
Act; and
(c) such number (not exceeding the
prescribed number) of other members as are appointed in accordance with this
Act.
396
Appointment of members
(1) The members of the Tribunal are to be
appointed by the Governor‑General.
(2) The Principal Member and the Senior
Members are to be appointed as full‑time members.
(3) Any other member may be appointed either
as a full‑time member or as a part‑time member.
397
Principal Member
(1) The Principal Member is the executive
officer of the Tribunal and is responsible for its overall operation and
administration.
(2) The
Principal Member is responsible for:
(a) monitoring the operations of the
Tribunal to ensure that those operations are as fair, just, economical,
informal and quick as practicable; and
(b) allocating the work of the
Tribunal among the members (including himself or herself) in accordance with
guidelines under subsection (3).
(3) The Principal Member may determine, in
writing, guidelines for the allocation of the work of the Tribunal.
(4) Without limiting the scope of subsection (3),
guidelines determined under that subsection must provide that cases where a
person affected by the decision under review is being held in immigration
detention must be given priority over other cases.
398
Period of appointment of members
Subject to this Part, a member holds
office for such period, not exceeding 5 years, as is specified in the
instrument of appointment, but is eligible for reappointment.
399
Remuneration and allowances of members
(1) A member is to be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration is in operation, the member is to be paid such remuneration as is
prescribed.
(2) A member is to be paid such allowances as
are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
400
Other terms and conditions
A member holds office on such terms and
conditions in respect of matters not provided for by this Act as are determined
by the Minister in writing.
401
Resignation
A member may resign by writing signed by
him or her and sent to the Governor‑General.
402
Disclosure of interests
(1) A member who has a conflict of interest
in relation to a review by the Tribunal:
(a) must disclose the matters giving
rise to that conflict to the applicant and:
(i) if the member is the
Principal Member—to the Minister; or
(ii) in any other case—to
the Principal Member; and
(b) the member must not take part in
the review or exercise any powers in relation to the review unless:
(i) if the member is the
Principal Member—the applicant and the Minister consent; or
(ii) in any other case—the
applicant and the Principal Member consent.
(2) For the purposes of this section, a
member has a conflict of interest in relation to a review by the Tribunal if
the member has any interest, pecuniary or otherwise, that could conflict with
the proper performance of the member’s functions in relation to that review.
403
Removal from office
(1) The Governor‑General may remove a
member from office on the ground of proved misbehaviour or physical or mental
incapacity.
(2) The Governor‑General may remove a
member from office if:
(a) the member becomes bankrupt; or
(b) the member applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) the member compounds with his or
her creditors; or
(d) the
member makes an assignment of remuneration for the benefit of his or her
creditors; or
(e) the member has a direct or
indirect pecuniary interest in an immigration advisory service; or
(f) the member, being a full‑time
member, is absent from duty, except on leave of absence granted in accordance
with the terms and conditions determined under section 400, for 14
consecutive days or 28 days in any 12 months; or
(g) the member, being a full‑time
member, engages in paid employment outside the duties of the office of member
without the Minister’s written consent; or
(h) the member fails, without
reasonable excuse, to comply with his or her obligations under section 402.
(3) In this section:
immigration advisory service means a body
that provides services in relation to the seeking by non‑citizens of
permission to enter or remain in Australia.
404
Acting appointments
(1) The Minister may appoint a person to act
in a senior office:
(a) during a vacancy in the office,
whether or not an appointment has previously been made to the office; or
(b) during any period, or during all
periods, when the holder of the office is absent from duty or from Australia or
is, for any reason, unable to perform the duties of the office.
(2) Subject to this section, a person
appointed to act during a vacancy in a senior office must not continue to act
for more than 12 months.
(3) If a person is acting in an office, the
Minister may direct that, for the purposes specified in the direction, the
person is to be taken to continue to act in the office after the normal
terminating event occurs.
(4) A
direction under subsection (3) must specify the period during which the
person is to be taken to continue to act in the office.
(5) The period specified under subsection (4)
may be specified by reference to the happening of a particular event or the
existence of particular circumstances.
(6) A
direction under subsection (3):
(a) is to be given only if there is a
pending review or other special circumstance justifying the giving of the
direction; and
(b) may only be given before the
normal terminating event occurs; and
(c) has effect according to its terms
even if the holder of the office is also performing the duties of the office;
and
(d) ceases to have effect 12 months
after the normal terminating event occurs.
(7) If the Tribunal as constituted for the
purposes of a review includes a person acting or purporting to act under this
section, any decision of, or any direction given or other act done by, the
Tribunal as so constituted is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(8) Anything done by or in relation to a person
acting or purporting to act under an appointment under this section is not
invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(9) In this
section:
normal terminating event, in relation to an
appointment to act in an office, means:
(a) if the appointment is made under paragraph (1)(a)—the
filling of the vacancy in the office; or
(b) if the appointment is made under paragraph (1)(b)—the
holder of the office ceasing to be absent or ceasing to be unable to perform
the duties of the office.
senior office means the office of Principal
Member or an office of Senior Member.
405
Delegation
The Principal Member may, by writing,
signed by him or her, delegate to a Senior Member all or any of the Principal
Member’s powers under this Act other than the power under section 381 to
refer decisions to the Administrative Appeals Tribunal.
Division 2—Registries and officers
406
Registries
(1) The Minister is to establish such
registries of the Tribunal as the Minister thinks fit.
(2) The Minister must designate one of the
registries as the Principal Registry.
407
Officers of Tribunal
(1) There is to be a Registrar of the
Tribunal and such Deputy Registrars and other officers of the Tribunal as are
required.
(2) The Registrar, the Deputy Registrars and
the other officers of the Tribunal are to be appointed by the Minister.
(3) The officers of the Tribunal have:
(a) such duties, powers and functions
as are provided by this Act and the regulations; and
(b) such other duties and functions as
the Principal Member directs.
(4) The Registrar, the Deputy Registrar and
the other officers of the Tribunal are to be persons engaged under the Public
Service Act 1999.
408
Acting appointments
(1) The Minister may appoint a person engaged
under the Public Service Act 1999 to act in a Tribunal office:
(a) during a vacancy in the office; or
(b) during a period when the holder of
the office is absent from duty.
(2) In this
section:
Tribunal office means the office of Registrar
of the Tribunal, an office of Deputy Registrar of the Tribunal or the office of
any other officer of the Tribunal appointed under section 407.
Part 7—Review of protection visa decisions
Division 1—Interpretation
410
Interpretation
In this Part:
Deputy Principal Member means the Deputy
Principal Member of the Tribunal.
member means a member of the Tribunal.
Principal Member means the Principal Member
of the Tribunal.
Registrar means the Registrar of the
Tribunal.
Tribunal means the Refugee Review Tribunal.
Division 2—Review of decisions by Refugee Review Tribunal
411
Decisions reviewable by Refugee Review Tribunal
(1) Subject to subsection (2), the
following decisions are RRT‑reviewable decisions:
(a) a decision, made before 1 September
1994, that a non‑citizen is not a refugee under the Refugees Convention
as amended by the Refugees Protocol (other than such a decision made after a
review by the Minister of an earlier decision that the person was not such a
refugee);
(b) a decision, made before 1 September
1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning
of this Act as in force immediately before that date), a criterion for which is
that the applicant for it is a non‑citizen who has been determined to be
a refugee under the Refugees Convention as amended by the Refugees Protocol
(other than such a decision made under the Migration (Review) (1993)
Regulations or under the repealed Part 2A of the Migration (Review)
Regulations);
(c) a decision to refuse to grant a
protection visa;
(d) a decision to cancel a protection
visa.
(2) The following decisions are not RRT‑reviewable
decisions:
(a) decisions made in relation to a
non‑citizen who is not physically present in the migration zone when the
decision is made;
(b) decisions in relation to which the
Minister has issued a conclusive certificate under subsection (3).
(3) The Minister may issue a conclusive
certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the
national interest to change the decision; or
(b) it would be contrary to the
national interest for the decision to be reviewed.
412
Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT‑reviewable
decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within
the period prescribed, being a period ending not later than 28 days after the
notification of the decision; and
(c) be accompanied by the prescribed
fee (if any).
(2) An application for review may only be
made by the non‑citizen who is the subject of the primary decision.
(3) An application for review may only be
made by a non‑citizen who is physically present in the migration zone
when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b)
may specify different periods in relation to different classes of RRT‑reviewable
decisions (which may be decisions that relate to non‑citizens in a
specified place).
413
Refugee Review Tribunal to deal with the backlog of review applications
(1) This section applies to an RRT‑reviewable
decision covered by paragraph 411(1)(a) or (b) if:
(a) an application was made before 1 July 1993 for review of the RRT‑reviewable decision; and
(b) if, at the time when the
application was made, there were in force regulations dealing with applications
for review of such a decision—the application was made in accordance with those
regulations; and
(c) any of the following subparagraphs
applies:
(i) no decision on the
review was made before the commencement of this section;
(ii) all of the following
sub‑subparagraphs apply:
(A) a
decision (the initial review decision) on the review was made
before the commencement of this section;
(B) the
initial review decision was quashed or set aside by a court before the
commencement of this section;
(C) the
matter to which the initial review decision relates was referred by the court
for further consideration;
(D) no
decision on that further consideration was made before the commencement of this
section;
(iii) all of the following
sub‑subparagraphs apply:
(A) a
decision (the initial review decision) on the review was made
before the commencement of this section;
(B) the
initial review decision is quashed or set aside by a court after the
commencement of this section;
(C) the
matter to which the initial review decision relates is referred by the court
for further consideration;
(iv) all of the following
sub‑subparagraphs apply:
(A) a
decision (the initial review decision) on the review was made
before the commencement of this section;
(B) an
application for judicial review (the judicial review application)
of the initial review decision was made before the commencement of this
section;
(C) before
the judicial review application was or is determined by the court, the Minister
agreed or agrees, in writing, to reconsider the initial review decision;
(D) no
decision on that reconsideration was made before the commencement of this
section;
(v) all of the following
sub‑subparagraphs apply:
(A) a
decision (the initial review decision) on the review was made
before the commencement of this section;
(B) an
application for judicial review (the judicial review application)
of the initial review decision is made after the commencement of this section;
(C) before
the judicial review application is determined by the court, the Minister agrees
in writing to reconsider the initial review decision.
(2) A valid application is taken to have been
made under section 412 for review of the RRT‑reviewable decision.
(3) No action is to be taken to review the
RRT‑reviewable decision otherwise than under this Part.
(4) This section has effect despite any other
provision of this Act or the regulations.
(5) A reference in this section (other than sub-subparagraphs (1)(c)(iv)(B)
or (1)(c)(v)(B)) to review does not include a reference to judicial review.
414
Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a
valid application is made under section 412 for review of an RRT‑reviewable
decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue
to review, a decision in relation to which the Minister has issued a conclusive
certificate under subsection 411(3).
414A
Period within which Refugee Review Tribunal must review decision on protection
visas
(1) If an application for review of an RRT‑reviewable
decision:
(a) was validly made under section 412;
or
(b) was remitted by any court to the
Refugee Review Tribunal for reconsideration;
then the Refugee Review Tribunal must review the decision
under section 414 and record its decision under section 430 within 90
days starting on the day on which the Secretary gave the Registrar the
documents that subsection 418(2) requires the Secretary to give to the
Registrar.
(2) Failure to comply with this section does
not affect the validity of a decision made under section 415 on an
application for review of an RRT‑reviewable decision.
415
Powers of Refugee Review Tribunal
(1) The Tribunal may, for the purposes of the
review of an RRT‑reviewable decision, exercise all the powers and
discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a
prescribed matter—remit the matter for reconsideration in accordance with such
directions or recommendations of the Tribunal as are permitted by the
regulations; or
(d) set the decision aside and
substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and
substitutes a new decision;
the decision as varied or substituted is taken (except for
the purpose of appeals from decisions of the Tribunal) to be a decision of the
Minister.
(4) To avoid doubt, the Tribunal must not, by
varying a decision or setting a decision aside and substituting a new decision,
purport to make a decision that is not authorised by the Act or the
regulations.
416
Only new information to be considered in later applications for review
If a non‑citizen who has made:
(a) an application for review of an
RRT‑reviewable decision that has been determined by the Tribunal or the
Administrative Appeals Tribunal; or
(b) applications for reviews of RRT‑reviewable
decisions that have been determined by the Tribunal or the Administrative
Appeals Tribunal;
makes a further application for review of an RRT‑reviewable
decision, the Tribunal, in considering the further application:
(c) is not required to consider any
information considered in the earlier application or an earlier application;
and
(d) may have regard to, and take to be
correct, any decision that the Tribunal or the Administrative Appeals Tribunal
made about or because of that information.
417
Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the
public interest to do so, the Minister may substitute for a decision of the
Tribunal under section 415 another decision, being a decision that is more
favourable to the applicant, whether or not the Tribunal had the power to make
that other decision.
(2) In exercising the power under subsection (1)
on or after 1 September 1994, the Minister is not bound by Subdivision AA
or AC of Division 3 of Part 2 or by the regulations, but is bound by
all other provisions of this Act.
(3) The power under subsection (1) may
only be exercised by the Minister personally.
(4) If the Minister substitutes a decision
under subsection (1), he or she must cause to be laid before each House of
the Parliament a statement that:
(a) sets out the decision of the
Tribunal; and
(b) sets out the decision substituted
by the Minister; and
(c) sets out the reasons for the
Minister’s decision, referring in particular to the Minister’s reasons for
thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4)
is not to include:
(a) the name of the applicant; or
(b) any information that may identify
the applicant; or
(c) if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned—the name of that other person or
any information that may identify that other person.
(6) A statement under subsection (4) is
to be laid before each House of the Parliament within 15 sitting days of that
House after:
(a) if the decision is made between 1 January
and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July
and 31 December (inclusive) in a year—1 January in the following
year.
(7) The Minister does not have a duty to
consider whether to exercise the power under subsection (1) in respect of
any decision, whether he or she is requested to do so by the applicant or by
any other person, or in any other circumstances.
418
Secretary to be notified of application for review by Refugee Review Tribunal
(1) If an application for review is made to
the Refugee Review Tribunal, the Registrar must, as soon as practicable, give
the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working
days after being notified of the application, give to the Registrar the
prescribed number of copies of a statement about the decision under review
that:
(a) sets out the findings of fact made
by the person who made the decision; and
(b) refers to the evidence on which
those findings were based; and
(c) gives the reasons for the
decision.
(3) The Secretary must, as soon as is
practicable after being notified of the application, give to the Registrar each
other document, or part of a document, that is in the Secretary’s possession or
control and is considered by the Secretary to be relevant to the review of the
decision.
419
Certain decisions made by members of the Tribunal in their capacity as
delegates of the Minister to be treated as decisions of the Tribunal for
certain purposes
(1) This section applies to a decision under
section 22AA if the decision was made:
(a) by a member in his or her capacity
as a delegate of the Minister; and
(b) after 30 June 1993 and before the commencement of this section.
(2) Despite anything in section 411, the
decision is not an RRT‑reviewable decision.
(3) For the
purposes of sections 416 and 417:
(a) the
decision is taken to be a decision of the Tribunal made under section 415
by way of the determination of an application for review of an RRT‑reviewable
decision; and
(b) the applicant in relation to the
decision is taken to have made that application for review.
Division 3—Exercise of Refugee Review Tribunal’s powers
420
Refugee Review Tribunal’s way of operating
(1) The Tribunal, in carrying out its
functions under this Act, is to pursue the objective of providing a mechanism
of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) must act according to substantial
justice and the merits of the case.
420A
Principal Member may give directions
(1) The Principal Member may, in writing,
give directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Tribunal;
and
(b) the conduct of reviews by the
Tribunal.
(2) In particular, the directions may relate
to the application of efficient processing practices to the conduct of reviews
by the Tribunal.
(3) The Tribunal should, as far as
practicable, comply with the directions. However, non‑compliance by the
Tribunal with any direction does not mean that the Tribunal’s decision on a
review is an invalid decision.
(4) If the Tribunal deals with a review of a
decision in a way that complies with the directions, the Tribunal is not
required to take any other action in dealing with the review.
421
Constitution of Refugee Review Tribunal for exercise of powers
(1) For the purpose of a particular review,
the Tribunal is to be constituted, in accordance with a direction under subsection (2),
by a single member.
(2) The Principal Member may give a written
direction about who is to constitute the Tribunal for the purpose of a
particular review.
422
Reconstitution of Refugee Review Tribunal—unavailability of member
(1) If the member who constitutes the
Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b) for any reason, is not available
for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to
constitute the Tribunal for the purpose of finishing the review.
(2) If a direction is given, the Tribunal as
constituted in accordance with the direction is to continue to finish the
review and may, for that purpose, have regard to any record of the proceedings
of the review made by the Tribunal as previously constituted.
(3) In exercising powers under this section,
the Principal Member must have regard to the objective set out in subsection
420(1).
422A
Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that:
(a) the member constituting the
Tribunal for a particular review be removed; and
(b) another member constitute the
Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in
the interests of achieving the efficient conduct of the review in accordance
with the objective set out in subsection 420(1).
(2) However, the Principal Member must not
give such a direction unless:
(a) the Tribunal’s decision on the
review has not been recorded in writing or given orally; and
(b) the Principal Member has
consulted:
(i) the member
constituting the Tribunal; and
(ii) a Senior Member who is
not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member
is satisfied that there is insufficient material before the Tribunal for the
Tribunal to reach a decision on the review; or
(ii) a period equal to or
longer than the period prescribed for the purposes of this subparagraph has
elapsed since the Tribunal was constituted.
(3) If a direction under this section is
given, the member constituting the Tribunal in accordance with the direction is
to continue and finish the review and may, for that purpose, have regard to any
record of the proceedings of the review made by the member who previously
constituted the Tribunal.
Division 4—Conduct of review
422B
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an
exhaustive statement of the requirements of the natural justice hearing rule in
relation to the matters it deals with.
(2) Sections 416, 437 and 438 and
Division 7A, in so far as they relate to this Division, are taken to be an
exhaustive statement of the requirements of the natural justice hearing rule in
relation to the matters they deal with.
(3) In applying this Division, the Tribunal
must act in a way that is fair and just.
423
Documents to be given to the Refugee Review Tribunal
(1) An applicant for review by the Tribunal
may give the Registrar:
(a) a statutory declaration in
relation to any matter of fact that the applicant wishes the Tribunal to
consider; and
(b) written arguments relating to the
issues arising in relation to the decision under review.
(2) The Secretary may give the Registrar
written argument relating to the issues arising in relation to the decision
under review.
424
Tribunal may seek additional information
(1) In conducting the review, the Tribunal
may get any information that it considers relevant. However, if the Tribunal
gets such information, the Tribunal must have regard to that information in
making the decision on the review.
(2) Without limiting subsection (1), the
Tribunal may invite a person to give additional information.
(3) The invitation must be given to the
person:
(a) except where paragraph (b)
applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration
detention—by a method prescribed for the purposes of giving documents to such a
person.
424AA
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the
Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to
the applicant clear particulars of any information that the Tribunal considers
would be the reason, or a part of the reason, for affirming the decision that
is under review; and
(b) if the Tribunal does so—the
Tribunal must:
(i) ensure, as far as is
reasonably practicable, that the applicant understands why the information is
relevant to the review, and the consequences of the information being relied on
in affirming the decision that is under review; and
(ii) orally invite the
applicant to comment on or respond to the information; and
(iii) advise the applicant
that he or she may seek additional time to comment on or respond to the
information; and
(iv) if the applicant seeks
additional time to comment on or respond to the information—adjourn the review,
if the Tribunal considers that the applicant reasonably needs additional time
to comment on or respond to the information.
424A Information
and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3),
the Tribunal must:
(a) give to the applicant, in the way
that the Tribunal considers appropriate in the circumstances, clear particulars
of any information that the Tribunal considers would be the reason, or a part
of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably
practicable, that the applicant understands why it is relevant to the review,
and the consequences of it being relied on in affirming the decision that is
under review; and
(c) invite the applicant to comment on
or respond to it.
(2) The information and invitation must be
given to the applicant:
(a) except where paragraph (b)
applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration
detention—by a method prescribed for the purposes of giving documents to such a
person.
(2A) The Tribunal is not obliged under this
section to give particulars of information to an applicant, nor invite the
applicant to comment on or respond to the information, if the Tribunal gives
clear particulars of the information to the applicant, and invites the
applicant to comment on or respond to the information, under
section 424AA.
(3) This section does not apply to
information:
(a) that is not specifically about the
applicant or another person and is just about a class of persons of which the
applicant or other person is a member; or
(b) that the applicant gave for the
purpose of the application for review; or
(ba) that the applicant gave during the
process that led to the decision that is under review, other than such
information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable
information.
424B Requirements
for written invitation etc.
(1) If a person is:
(a) invited under section 424 to
give additional information; or
(b) invited under section 424A to
comment on or respond to information;
the invitation is to specify the way in which the
additional information, or the comments or the response, may be given, being
the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional
information, or comments or a response, otherwise than at an interview, the
information, or the comments or the response, are to be given within a period
specified in the invitation, being a prescribed period or, if no period is
prescribed, a reasonable period.
(3) If the invitation is to give information,
or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the
invitation; and
(b) at a time specified in the invitation,
being a time within a prescribed period or, if no period is prescribed, a
reasonable period.
(4) If a person is to respond to an
invitation within a prescribed period, the Tribunal may extend that period for
a prescribed further period, and then the response is to be made within the
extended period.
(5) If a
person is to respond to an invitation at an interview at a time within a
prescribed period, the Tribunal may change that time to:
(a) a later time within that period;
or
(b) a time within that period as
extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the
new time.
424C
Failure to give additional information, comments or response in response to
written invitation
(1) If a person:
(a) is invited under section 424
to give additional information; and
(b) does not give the information
before the time for giving it has passed;
the Tribunal may make a decision on the review without
taking any further action to obtain the additional information.
(2) If the applicant:
(a) is invited under section 424A
to comment on or respond to information; and
(b) does
not give the comments or the response before the time for giving them has
passed;
the Tribunal may make a decision on the review without
taking any further action to obtain the applicant’s views on the information.
425
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to
appear before the Tribunal to give evidence and present arguments relating to
the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it
should decide the review in the applicant’s favour on the basis of the material
before it; or
(b) the applicant consents to the
Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies
to the applicant.
(3) If any of the paragraphs in subsection (2)
of this section apply, the applicant is not entitled to appear before the
Tribunal.
425A
Notice of invitation to appear
(1) If the applicant is invited to appear
before the Tribunal, the Tribunal must give the applicant notice of the day on
which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the
applicant:
(a) except where paragraph (b)
applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration
detention—by a method prescribed for the purposes of giving documents to such a
person.
(3) The period of notice given must be at
least the prescribed period or, if no period is prescribed, a reasonable
period.
(4) The notice must contain a statement of
the effect of section 426A.
426
Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A,
the Tribunal must notify the applicant:
(a) that he or she is invited to
appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2)
of this section.
(2) The applicant may, within 7 days after
being notified under subsection (1), give the Tribunal written notice that
the applicant wants the Tribunal to obtain oral evidence from a person or
persons named in the notice.
(3) If the Tribunal is notified by an
applicant under subsection (2), the Tribunal must have regard to the
applicant’s wishes but is not required to obtain evidence (orally or otherwise)
from a person named in the applicant’s notice.
426A
Failure of applicant to appear before Tribunal
(1) If the
applicant:
(a) is invited under section 425
to appear before the Tribunal; and
(b) does
not appear before the Tribunal on the day on which, or at the time and place at
which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without
taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the
Tribunal from rescheduling the applicant’s appearance before it, or from
delaying its decision on the review in order to enable the applicant’s
appearance before it as rescheduled.
427
Powers of the Refugee Review Tribunal etc.
(1) For the purpose of the review of a
decision, the Tribunal may:
(a) take evidence on oath or
affirmation; or
(b) adjourn the review from time to
time; or
(c) subject to sections 438 and
440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange
for the making of any investigation, or any medical examination, that the
Tribunal thinks necessary with respect to the review, and to give to the
Tribunal a report of that investigation or examination.
(2) The Tribunal must combine the reviews of
2 or more RRT‑reviewable decisions made in respect of the same non‑citizen.
(3) Subject to subsection (4), the
Tribunal in relation to a review may:
(a) summon a person to appear before
the Tribunal to give evidence; and
(b) summon a person to produce to the
Tribunal such documents as are referred to in the summons; and
(c) require a person appearing before
the Tribunal to give evidence either to take an oath or affirmation; and
(d) administer an oath or affirmation
to a person so appearing.
(4) The Tribunal must not summon a person
under paragraph (3)(a) or (b) unless the person is in Australia.
(5) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence that the person will give will be true.
(6) A person appearing before the Tribunal to
give evidence is not entitled:
(a) to be represented before the
Tribunal by any other person; or
(b) to examine or cross‑examine
any other person appearing before the Tribunal to give evidence.
(7) If a person appearing before the Tribunal
to give evidence is not proficient in English, the Tribunal may direct that
communication with that person during his or her appearance proceed through an
interpreter.
428
Tribunal member may authorise another person to take evidence
(1) The power of the Tribunal under paragraph
427(1)(a) to take evidence on oath or affirmation for the purpose of a review
may be exercised by the Tribunal or on behalf of the Tribunal by:
(a) a person appointed or engaged
under the Public Service Act 1999; or
(b) another person approved in writing
by the Minister for the purposes of this section;
who is authorised in writing by the Tribunal.
(2) The power of the Tribunal may be
exercised under subsection (1):
(a) inside or outside Australia; and
(b) subject to such limitations (if
any) as are specified by the Tribunal.
(3) If a
person other than the Tribunal is authorised under subsection (1) to take
evidence for the purpose of a review:
(a) the
person has, for the purpose of taking that evidence:
(i) all the powers of the
Tribunal under subsection 427(1); and
(ii) the power to
administer an oath or affirmation to a person appearing before the first‑mentioned
person to give evidence; and
(b) for the purpose of the exercise of
those powers by that person, this Part has effect (except where the context
otherwise requires) as if a reference to the Tribunal included a reference to
that person.
(4) If a person (other than the Tribunal as
constituted for the purpose of the review) exercises the power of the Tribunal
to take evidence on oath or affirmation for the purpose of a review, the person
must cause a written record of the evidence taken to be made and sent to the
Tribunal.
(5) If the
Tribunal receives, under subsection (4), a record of evidence given by the
applicant, the Tribunal, for the purposes of section 425, is taken to have
given the applicant an opportunity to appear before it to give evidence.
429
Review to be in private
The hearing of an application for review
by the Tribunal must be in private.
429A
Oral evidence by telephone etc.
For the purposes of the review of a
decision, the Tribunal may allow the appearance by the applicant before the
Tribunal, or the giving of evidence by the applicant or any other person, to be
by:
(a) telephone; or
(b) closed‑circuit television;
or
(c) any other means of communication.
Division 5—Decisions of Refugee Review Tribunal
430
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on
a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the
Tribunal on the review; and
(b) sets out the reasons for the
decision; and
(c) sets out the findings on any
material questions of fact; and
(d) refers to the evidence or any
other material on which the findings of fact were based.
(3) Where the Tribunal has prepared the
written statement, the Tribunal must:
(a) return to the Secretary any
document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any
other document that contains evidence or material on which the findings of fact
were based.
430A
Tribunal must invite parties to handing down of decision
(1) This section applies to any decision on a
review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a
person who is in immigration detention.
(2) The Tribunal must invite the applicant
and the Secretary to be present when the decision is handed down.
(3) The Tribunal must give the applicant and
the Secretary written notice of the day on which, and the time and place at
which, the decision is to be handed down. The period of notice given must be at
least the prescribed period or, if no period is prescribed, a reasonable
period.
(4) The notice to the applicant must:
(a) contain a statement of the effect
of subsection 430B(6); and
(b) be given to the applicant by one
of the methods specified in section 441A.
(5) The notice to the Secretary must be given
by one of the methods specified in section 441B.
430B
Tribunal decision to be handed down
(1) This section applies to any decision on a
review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a
person who is in immigration detention.
(2) On the day, and at the time and place,
specified in the notice referred to in section 430A, the decision on the
review is to be handed down (on behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by
the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a
person is authorised to hand down decisions.
(3) The Tribunal’s decision may be handed
down:
(a) by reading the outcome of the
decision; and
(b) whether or not either or both the
applicant and the Secretary are present.
(4) The date of the decision is the date on
which the decision is handed down.
(5) If the applicant and the Secretary are
present at the handing down of the decision, the Tribunal must give each of
them a copy of the statement prepared under subsection 430(1).
(6) If the
applicant is not present at the handing down of the decision, the Tribunal must
notify the applicant of the decision by giving the applicant a copy of the
statement prepared under subsection 430(1). The copy must be given to the
applicant:
(a) within 14 days after the day on
which the decision is handed down; and
(b) by one of the methods specified in
section 441A.
(7) If the Secretary is not present at the
handing down of the decision, the Tribunal must give to the Secretary a copy of
the statement prepared under subsection 430(1). The copy must be given to the
Secretary:
(a) within 14 days after the day on
which the decision is handed down; and
(b) by one of the methods specified in
section 441B.
(8) Without limiting the generality of subsections (6)
and (7), an applicant or the Secretary is taken not to be present at the
handing down of a decision if:
(a) he or she is not at the same
location as that of the person who is handing down the decision when the
decision is handed down; and
(b) the decision is being handed down
by:
(i) telephone; or
(ii) closed‑circuit
television; or
(iii) any other means of
communication.
(9) A reference to the applicant or the
Secretary being present at the handing down of the decision includes a
reference to a representative of the applicant or Secretary being present.
430C
Applicant taken to be notified when representative notified
(1) If a representative of the applicant is
present at the handing down of a decision under section 430B, the
applicant is taken to be notified of the decision on the day on which the
decision is handed down.
(2) If a representative of the applicant is
notified of a decision under subsection 430B(6), the applicant is taken to be
notified of the decision on the day on which the representative is so notified.
430D
Tribunal must notify parties (parties not invited to handing down of decision)
(1) If the Tribunal gives an oral decision on
an application for review, the Tribunal must give the applicant and the
Secretary a copy of the statement prepared under subsection 430(1) within 14
days after the decision concerned is made. The applicant is taken to be
notified of the decision on the day on which the decision is made.
(2) If the applicant is in immigration
detention, the Tribunal must give the applicant and the Secretary a copy of the
statement prepared under subsection 430(1) within 14 days after the decision
concerned is made.
431
Certain Tribunal decisions to be published
(1) Subject to subsection (2), and to
any direction under section 440, the Registrar must ensure the publication
of any statements prepared under subsection 430(1) that the Principal Member
thinks are of particular interest.
(2) The Tribunal must not publish any statement
which may identify an applicant or any relative or other dependent of an
applicant.
Division 6—Offences
432
Failure of witness to attend
(1) A person who has been served, as
prescribed, with a summons, under subsection 427(3), to appear before the Tribunal
to give evidence and tendered reasonable expenses must not:
(a) fail to attend as required by the
summons; or
(b) fail
to appear and report from day to day unless excused, or released from further
attendance, by the Tribunal.
Penalty: Imprisonment for 6 months.
(1A) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(1B) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) To avoid doubt, an invitation under
section 425 to appear before the Tribunal is not a summons to appear
before the Tribunal to give evidence.
433
Refusal to be sworn or to answer questions etc.
(1) A person appearing before the Tribunal to
give evidence must not:
(a) when required under section 427
either to take an oath or to make an affirmation—refuse or fail to comply with
the requirement; or
(b) refuse or fail to answer a
question that the person is required to answer by the Tribunal.
Penalty: Imprisonment for 6 months.
(1A) Subsection (1)
does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(2) Subject to section 437, a person
must not refuse or fail to produce a document that a person is required to
produce by a summons under section 427 served on the person as prescribed.
Penalty: Imprisonment for 6 months.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(2B) An offence against subsection (1) or
(2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person
appearing before the Tribunal to give evidence must not intentionally give
evidence that is false or misleading in a material particular.
Penalty for a contravention of this subsection:
Imprisonment for 12 months.
434
Contempt of Tribunal
A person must not:
(a) obstruct or hinder the Tribunal or
a member in the performance of the functions of the Tribunal; or
(b) disrupt
the taking of evidence by the Tribunal.
Penalty: Imprisonment for 12 months.
Division 7—Miscellaneous
435
Protection of members and persons giving evidence
(1) A member has, in the performance of his or
her duties as a member, the same protection and immunity as a member of the
Administrative Appeals Tribunal.
(2) Subject to this Part, a person summoned
to attend, or appearing, before the Tribunal to give evidence has the same
protection, and is, in addition to the penalties provided by this Part, subject
to the same liabilities, as a witness in proceedings in the Administrative
Appeals Tribunal.
436
Fees for persons giving evidence
(1) A person, other than the applicant,
summoned to appear before the Tribunal to give evidence is entitled to be paid,
in respect of his or her attendance, fees, and allowances for expenses, fixed
by or in accordance with the regulations.
(2) The fees and allowances must be paid:
(a) if the applicant notifies the
Tribunal under subsection 426(2) that he or she wants the Tribunal to obtain
evidence from the person—by the applicant; or
(b) in any other case—by the
Commonwealth.
437
Restrictions on disclosure of certain information etc.
In spite of anything else in this Act,
the Secretary must not give to the Tribunal a document, or information, if the
Minister certifies, in writing, that the disclosure of any matter contained in
the document, or the disclosure of the information, would be contrary to the
public interest:
(a) because it would prejudice the
security, defence or international relations of Australia; or
(b) because it would involve the
disclosure of deliberations or decisions of the Cabinet or of a committee of
the Cabinet.
438
Refugee Review Tribunal’s discretion in relation to disclosure of certain
information etc.
(1) This section applies to a document or
information if:
(a) the Minister has certified, in
writing, that the disclosure of any matter contained in the document, or the
disclosure of the information, would be contrary to the public interest for any
reason specified in the certificate (other than a reason set out in paragraph
437(a) or (b)) that could form the basis for a claim by the Crown in right of
the Commonwealth in a judicial proceeding that the matter contained in the
document, or the information, should not be disclosed; or
(b) the document, the matter contained
in the document, or the information was given to the Minister, or to an officer
of the Department, in confidence.
(2) If, in compliance with a requirement of
or under this Act, the Secretary gives to the Tribunal a document or
information to which this section applies, the Secretary:
(a) must notify the Tribunal in
writing that this section applies in relation to the document or information;
and
(b) may give the Tribunal any written
advice that the Secretary thinks relevant about the significance of the
document or information.
(3) If the Tribunal is given a document or
information and is notified that this section applies in relation to it, the
Tribunal:
(a) may, for the purpose of the
exercise of its powers, have regard to any matter contained in the document, or
to the information; and
(b) may, if the Tribunal thinks it
appropriate to do so having regard to any advice given by the Secretary under subsection (2),
disclose any matter contained in the document, or the information, to the
applicant.
(4) If the Tribunal discloses any matter to
the applicant, under subsection (3), the Tribunal must give a direction
under section 440 in relation to the information.
439
Disclosure of confidential information
(1) This
section applies to a person who is or has been:
(a) a member of the Tribunal; or
(b) a person acting as a member of the
Tribunal; or
(c) an officer of the Tribunal; or
(d) a person providing interpreting
services in connection with a review by the Tribunal.
(2) This section applies to information or a
document if the information or document concerns a person and is obtained by a
person to whom this section applies in the course of performing functions or
duties or exercising powers under this Act.
(3) A person to whom this section applies
must not:
(a) make a record of any information
to which this section applies; or
(b) divulge or communicate to any
person any information to which this section applies;
unless the record is made or the information is divulged
or communicated:
(c) for the purposes of this Act; or
(d) for the purposes of, or in
connection with, the performance of a function or duty or the exercise of a
power under this Act.
Penalty: Imprisonment for 2 years.
(4) Subsection (3) applies to the
divulging or communication of information whether directly or indirectly.
(5) A person to whom this section applies
must not be required to produce any document, or to divulge or communicate any
information, to which this section applies to or in:
(a) a court; or
(b) a
tribunal; or
(c) a House of the Parliament of the
Commonwealth, of a State or of a Territory; or
(d) a committee of a House, or the Houses,
of the Parliament of the Commonwealth, of a State or of a Territory; or
(e) any other authority or person
having power to require the production of documents or the answering of
questions;
except where it is necessary to do so for the purposes of
carrying into effect the provisions of this Act.
(6) Nothing in this section affects a right
that a person has under the Freedom of Information Act 1982.
(7) For the purposes of this section, a
person who is providing interpreting services in connection with a review by
the Tribunal is taken to be performing a function under this Act.
(8) In this section:
produce includes permit access to.
440
Refugee Review Tribunal may restrict publication or disclosure of certain
matters
(1) If the Tribunal is satisfied, in relation
to a review, that it is in the public interest that:
(a) any evidence given before the
Tribunal; or
(b) any information given to the
Tribunal; or
(c) the contents of any document
produced to the Tribunal;
should not be published or otherwise disclosed, or should
not be published or otherwise disclosed except in a particular manner and to
particular persons, the Tribunal may give a written direction accordingly.
(2) If the Tribunal has given a direction
under subsection (1) in relation to the publication of any evidence or
information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its
obligations under section 430; or
(b) prevent a person from
communicating to another person a matter contained in the evidence, information
or document, if the first‑mentioned person has knowledge of the matter
otherwise than because of the evidence or the information having been given or
the document having been produced to the Tribunal.
(3) A person
must not contravene a direction given by the Tribunal under subsection (1)
that is applicable to the person.
Penalty: Imprisonment for 2 years.
440A
Principal Member’s obligation to report to Minister
Principal Member must give periodic reports to Minister
(1) The Principal Member must give a report
under this section to the Minister within 45 days after the end of each of the
following periods (each of which is a reporting period):
(a) the period that started on 1 July 2005 and ends, or ended, on 31 October 2005; and
(b) each subsequent period of 4
months.
Principal Member must give additional reports to
Minister as required
(2) The Minister may give to the Principal
Member a notice requiring the Principal Member to give to the Minister a report
under this section in addition to the reports required under subsection (1).
The notice must specify the period to which the report is to relate (also a reporting
period).
(3) The Principal Member must give the report
under subsection (2) to the Minister:
(a) within 45 days after the day on
which the reporting period ends; or
(b) within 45 days after the day on
which the Minister gives the notice to the Principal Member;
whichever is later.
(4) A notice under subsection (2) is not
a legislative instrument.
Information that must be included in report
(5) A report under this section relating to a
reporting period must include information about each application for a review
of an RRT‑reviewable decision:
(a) that:
(i) an applicant has
validly made under section 412; or
(ii) a court has remitted
to the Refugee Review Tribunal for reconsideration; and
(b) for which:
(i) the Refugee Review
Tribunal has reviewed the decision under section 414 and has recorded its
decision under section 430 during the reporting period, but has not done
so within the decision period; or
(ii) the Refugee Review
Tribunal has not reviewed the decision under section 414 and has not
recorded its decision under section 430 before or during the reporting
period, and the decision period has ended (whether before or during the
reporting period).
(6) The report must also include:
(a) the date on which each application
was made that:
(i) was validly made under
section 412; and
(ii) paragraph (5)(b)
applies to; and
(b) the reasons why decisions were not
reviewed within the decision period.
Note: The reasons mentioned in paragraph (6)(b)
may relate to aspects of processing applications for review that are beyond the
Refugee Review Tribunal’s control.
Information that must not be included in the report
(7) A report under this section must not
include:
(a) the name of any current or former
applicant for review of an RRT‑reviewable decision; or
(b) any information that may identify
such an applicant; or
(c) the name of any other person
connected in any way with any application for review of an RRT‑reviewable
decision made by the applicant mentioned in paragraph (a); or
(d) any information that may identify
that other person.
Information that may be included in the report
(8) The report may include any other
information that the Principal Member thinks appropriate.
Reports to be tabled in Parliament
(9) The Minister must cause a copy of a
report under this section to be tabled in each House of the Parliament within
15 sitting days of that House after the day on which the Minister receives the
report from the Principal Member.
Definition
(10) In this section:
decision period for an application for review
of an RRT‑reviewable decision means the period of 90 days starting on the
day on which the Secretary has given to the Registrar the documents required to
be given by subsections 418(2) and 418(3).
441
Sittings of the Refugee Review Tribunal
(1) Sittings of the Tribunal are to be held
from time to time as required, in such places in Australia as are convenient.
(2) The Tribunal constituted by a member may
sit and exercise the powers of the Tribunal even though the Tribunal
constituted by another member is at the same time sitting and exercising those
powers.
Division 7A—Giving and receiving review documents
441AA
Giving documents by Tribunal where no requirement to do so by section 441A
or 441B method
If:
(a) a provision of this Act or the
regulations requires or permits the Tribunal to give a document to a person;
and
(b) the provision does not state that
the document must be given:
(i) by one of the methods
specified in section 441A or 441B; or
(ii) by a method prescribed
for the purposes of giving documents to a person in immigration detention;
the Tribunal may give the document to the person by any
method that it considers appropriate (which may be one of the methods mentioned
in subparagraph (b)(i) or (ii) of this section).
Note: Under section 441G an applicant may give
the Tribunal the name of an authorised recipient who is to receive documents on
the applicant’s behalf.
441A
Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this
Part or the regulations that:
(a) require or permit the Tribunal to
give a document to a person (the recipient); and
(b) state that the Tribunal must do so
by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the
Registrar or an officer of the Tribunal, or a person authorised in writing by
the Registrar, handing the document to the recipient.
Handing to a person at last residential or business
address
(3) Another method consists of a member, the
Registrar or an officer of the Tribunal, or a person authorised in writing by
the Registrar, handing the document to another person who:
(a) is at the last residential or
business address provided to the Tribunal by the recipient in connection with
the review; and
(b) appears to live there (in the case
of a residential address) or work there (in the case of a business address);
and
(c) appears to be at least 16 years of
age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the
Registrar or an officer of the Tribunal, dating the document, and then
dispatching it:
(a) within 3 working days (in the
place of dispatch) of the date of the document; and
(b) by prepaid post or by other
prepaid means; and
(c) to:
(i) the last address for
service provided to the Tribunal by the recipient in connection with the
review; or
(ii) the last residential
or business address provided to the Tribunal by the recipient in connection
with the review.
Transmission by fax, e‑mail or other electronic
means
(5) Another method consists of a member, the
Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address, as the case may be, provided to the Tribunal by the
recipient in connection with the review.
441B
Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this
Part or the regulations that:
(a) require or permit the Tribunal to
give a document to the Secretary; and
(b) state that the Tribunal must do so
by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the
Registrar or an officer of the Tribunal, or a person authorised in writing by
the Registrar, handing the document to the Secretary or to an authorised
officer.
Dispatch by post or by other means
(3) Another method consists of a member, the
Registrar or an officer of the Tribunal, dating the document, and then dispatching
it:
(a) within 3 working days (in the
place of dispatch) of the date of the document; and
(b) by post or by other means; and
(c) to an address, notified to the
Tribunal in writing by the Secretary, to which such documents can be
dispatched.
Transmission by fax, e‑mail or other electronic
means
(4) Another method consists of a member, the
Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address notified to the Tribunal in writing by the Secretary for the
purpose.
441C
When a person other than the Secretary is taken to have received a document
from the Tribunal
(1) This section applies if the Tribunal
gives a document to a person other than the Secretary by one of the methods
specified in section 441A (including in a case covered by section 441AA).
Giving by hand
(2) If the Tribunal gives a document to a
person by the method in subsection 441A(2) (which involves handing the document
to the person), the person is taken to have received the document when it is
handed to the person.
Handing to a person at last residential or business
address
(3) If the Tribunal gives a document to a
person by the method in subsection 441A(3) (which involves handing the document
to another person at a residential or business address), the person is taken to
have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a
person by the method in subsection 441A(4) (which involves dispatching the
document by prepaid post or by other prepaid means), the person is taken to
have received the document:
(a) if the document was dispatched
from a place in Australia to an address in Australia—7 working days (in the
place of that address) after the date of the document; or
(b) in any other case—21 days after
the date of the document.
Transmission by fax, e‑mail or other electronic
means
(5) If the Tribunal gives a document to a
person by the method in subsection 441A(5) (which involves transmitting the
document by fax, e‑mail or other electronic means), the person is taken
to have received the document at the end of the day on which the document is
transmitted.
(6) Subsection (5) applies despite
section 14 of the Electronic Transactions Act 1999.
441D
When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal
gives a document to the Secretary by one of the methods specified in section 441B
(including in a case covered by section 441AA).
Giving by hand
(2) If the Tribunal gives a document to the
Secretary by the method in subsection 441B(2) (which involves handing the
document to the Secretary or to an authorised officer), the Secretary is taken
to have received the document when it is handed to the Secretary or to the
authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the
Secretary by the method in subsection 441B(3) (which involves dispatching the
document by post or by other means), the Secretary is taken to have received
the document:
(a) if the document was dispatched
from a place in Australia to an address in Australia—7 working days (in the place
of that address) after the date of the document; or
(b) in any other case—21 days after
the date of the document.
Transmission by fax, e‑mail or other electronic
means
(4) If the Tribunal gives a document to the
Secretary by the method in subsection 441B(4) (which involves transmitting the
document by fax, e‑mail or other electronic means), the Secretary is
taken to have received the document at the end of the day on which the document
is transmitted.
(5) Subsection (4) applies despite
section 14 of the Electronic Transactions Act 1999.
441E
Tribunal may give copies of documents
If a provision of this Act requires or
permits the Tribunal to give a document to a person, the Tribunal may instead
give a copy of the document to the person by the same means as the Tribunal
could give the document itself.
441F
Giving documents etc. to the Tribunal
(1) If, in relation to the review of an RRT‑reviewable
decision, a person is required or permitted to give a document or thing to the
Tribunal, the person must do so:
(a) by giving the document or thing to
the Registrar or an officer of the Tribunal; or
(b) by a method set out in directions
under section 420A; or
(c) if the regulations set out a
method for doing so—by that method.
(2) Directions under section 420A may
make provision for a person to give a copy of a document, rather than the
document itself, to the Tribunal.
441G
Authorised recipient
(1) If:
(a) a person (the applicant)
applies for review of an RRT‑reviewable decision; and
(b) the applicant gives the Tribunal
written notice of the name and address of another person (the authorised
recipient) authorised by the applicant to do things on behalf of the
applicant that consist of, or include, receiving documents in connection with
the review;
the Tribunal must give the authorised recipient, instead
of the applicant, any document that it would otherwise have given to the
applicant.
Note: If the Tribunal gives a person a document by a
method specified in section 441A, the person is taken to have received the
document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the
authorised recipient, the Tribunal is taken to have given the document to the
applicant. However, this does not prevent the Tribunal giving the applicant a
copy of the document.
(3) The applicant may vary or withdraw the
notice under paragraph (1)(b) at any time, but must not (unless the
regulations provide otherwise) vary the notice so that any more than one person
becomes the applicant’s authorised recipient.
(4) The Tribunal may communicate with the
applicant by means other than giving a document to the applicant, provided the
Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the
Tribunal giving documents to, or communicating with, the applicant when the
applicant is appearing before the Tribunal.
Division 8—Referral of decisions to Administrative Appeals Tribunal
442
Interpretation
In this Division:
AAT Act means the Administrative
Appeals Tribunal Act 1975.
443
Referral of decisions to Administrative Appeals Tribunal
(1) The Principal Member of the Refugee
Review Tribunal may, if the Principal Member considers that a RRT‑reviewable
decision involves an important principle, or issue, of general application,
refer the decision to the President of the Administrative Appeals Tribunal.
(2) A referral under subsection (1) may
be made at any time:
(a) after the receipt by the Refugee
Review Tribunal of an application for a review of the decision; and
(b) before that Tribunal makes a
decision on the application.
(3) The following material must be sent with
the referral:
(a) a request for a review by the
Administrative Appeals Tribunal of that decision;
(b) a statement of the Principal
Member’s reasons for concluding that the decision involves an important
principle, or issue, of general application;
(c) any documents or other records
that the Principal Member considers relevant.
(4) The Principal Member must give written
notice of the making of a referral under subsection (1) to the applicant
and the Secretary.
(5) The Refugee Review Tribunal must not
commence any action in relation to the proceeding before it with respect to the
decision, or, if it has commenced such action, must cease that action until
notified by the President of the Administrative Appeals Tribunal in accordance
with section 444.
(6) If the President of the Administrative
Appeals Tribunal directs that the Administrative Appeals Tribunal will accept
the referral, the review by the Refugee Review Tribunal is taken to be closed.
444
Administrative Appeals Tribunal may accept or decline referral
(1) The President of the Administrative
Appeals Tribunal must consider a request under section 443 and either:
(a) direct that the Administrative
Appeals Tribunal will accept the referral of the decision; or
(b) direct that the Administrative
Appeals Tribunal will decline the referral of the decision.
(2) The President must notify the Principal
Member of the direction made under subsection (1).
(3) If the President accepts the referral of
an application for review of an RRT‑reviewable decision:
(a) the application to the Refugee
Review Tribunal is taken to have been properly made to the Administrative Appeals
Tribunal by the applicant to the Refugee Review Tribunal; and
(b) the AAT Act applies to the review
of the RRT‑reviewable decision subject to the modifications in this
Division.
445
Modification of definition of member in section 3 of the AAT Act
Section 3 of the AAT Act applies in
relation to an RRT‑reviewable decision as if the definition of member
were omitted and the following definition substituted:
“member means a presidential member, a senior
member or any other member of the Tribunal and includes the Principal Member of
the Refugee Review Tribunal.”.
446 Modification of section 21 of the AAT Act
Section 21 of the AAT Act applies
in relation to an RRT‑reviewable decision as if:
(a) Subsection (1) were omitted
and the following subsections substituted:
“(1) Subject to subsection (1AA),
the Tribunal is, for the purposes of the exercise of its powers in relation to
a matter, to be constituted by:
(a) a
presidential member who is a Judge, the Principal Member of the Refugee Review
Tribunal and one other member (not being a Judge); or
(b) a
Deputy President, the Principal Member of the Refugee Review Tribunal and one
non‑presidential member.
“(1AA) If the Principal Member of
the Refugee Review Tribunal had constituted that Tribunal for the review by the
Refugee Review Tribunal of the RRT‑reviewable decision that is the
subject of a matter, the Tribunal in relation to proceedings for the purposes
of the exercise of its power in relation to that matter, is to be constituted
by:
(a) a
presidential member who is a Judge and two other members (not being Judges or
the Principal Member of the Refugee Review Tribunal); or
(b) a
Deputy President and two non‑presidential members (not being the
Principal Member of the Refugee Review Tribunal).”; and
(b) subsections (2), (3) and (4)
were omitted.
447
Certain sections of the AAT Act do not apply to RRT‑reviewable decisions
Sections 21A, 27, 28 and 29 of the
AAT Act do not apply in relation to RRT‑reviewable decisions.
448
Modification of section 25 of the AAT Act
Section 25 of the AAT Act applies
in relation to an RRT‑reviewable decision as if subsections (6) and
(6A) were omitted.
449
Modification of section 30 of the AAT Act
Section 30 of the AAT Act applies
in relation to an RRT‑reviewable decision as if paragraphs (1)(a)
and (b) were omitted and the following paragraphs substituted:
“(a) the person who, under section 444
of the Migration Act 1958, is taken to have applied to the Tribunal for
review of the decision; and
(b) the person who is the Minister for
the purposes of the Migration Act 1958; and”.
450
Modification of section 37 of the AAT Act
Section 37 of the AAT Act applies
in relation to an RRT‑reviewable decision as if:
(a) subsections (1) to (1D)
(inclusive) were omitted and the following subsections substituted:
“(1) The Principal Member of
the Refugee Review Tribunal must forward to the Administrative Appeals Tribunal
all documents and other records relating to the proceeding before the Refugee
Review Tribunal with respect to the RRT‑reviewable decision within 14
days after receiving notice of the acceptance of the referral of the decision
to the Administrative Appeals Tribunal.
“(1A) Documents provided under
subsection 443(3) of the Migration Act 1958 are taken to have been provided
in accordance with subsection (1) of this section.”; and
(b) subsection (4) were omitted.
451
Modification of section 38 of the AAT Act
Section 38 of the AAT Act applies
in relation to an RRT‑reviewable decision as if the reference in that
section to a statement referred to in paragraph 37(1)(a) that is lodged by a
person with the Tribunal were a reference to a statement that was lodged with
the Refugee Review Tribunal by a person under section 418 of the Migration
Act 1958.
452
Modification of section 43 of the AAT Act
Section 43 of the AAT Act applies
in relation to an RRT‑reviewable decision as if subsection (1) were
omitted and the following subsections were substituted:
“(1) The Tribunal may, for the purposes
of the review of a RRT‑reviewable decision, exercise all the powers and
discretions that are conferred by the Migration Act 1958 on the person
who made the decision.
“(1A) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates
to a matter prescribed for the purposes of paragraph 415(2)(c) of the Migration
Act 1958—remit the matter for reconsideration in accordance with such
directions or recommendations of the Tribunal as are permitted by the
regulations under that Act; or
(d) set the decision aside
and substitute a new decision.
“(1B) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision
and substitutes a new decision;
the decision as varied or substituted
is taken (except for the purpose of appeals from decisions of the Tribunal) to
be a decision of the Minister.
“(1C) To
avoid doubt, the Tribunal must not, by varying a decision or setting a decision
aside and substituting a new decision, purport to make a decision that is not
authorised by the Migration Act 1958 or the regulations under that
Act.”.
453
Only new information to be considered in later applications for review
If a non‑citizen
who has made:
(a) an application for review of an
RRT‑reviewable decision that has been determined by the Administrative Appeals
Tribunal or the Refugee Review Tribunal; or
(b) applications for reviews of RRT‑reviewable
decisions that have been determined by the Administrative Appeals Tribunal, or
the Refugee Review Tribunal;
makes a further application for review of an RRT‑reviewable
decision, the Administrative Appeals Tribunal, in considering the further
application:
(c) is not required to consider any
information considered in the earlier application or an earlier application;
and
(d) may have regard to, and take to be
correct, any decision that the Administrative Appeals Tribunal or the Refugee
Review Tribunal made about or because of that information.
454
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
Administrative Appeals Tribunal in relation to an RRT‑reviewable decision
another decision, being a decision that is more favourable to the applicant,
whether or not the Administrative Appeals Tribunal had the power to make that
other decision.
(2) In exercising the power under subsection (1)
on or after 1 September 1994, the Minister is not bound by Subdivision AA
or AC of Division 3 of Part 2 or by the regulations, but is bound by
all other provisions of this Act.
(3) The power under subsection (1) may
only be exercised by the Minister personally.
(4) If the
Minister substitutes a decision under subsection (1), he or she is to
cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the
Administrative Appeals Tribunal; and
(b) sets out the decision substituted
by the Minister; and
(c) sets out the reasons for the
Minister’s decision, referring in particular to the Minister’s reasons for
thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4)
is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it
would not be in the public interest to publish the name of another person connected
in any way with the matter concerned—the name of that other person 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.
455
Provision of material to which section 438 applies
If the Refugee Review Tribunal gives to
the Administrative Appeals Tribunal a document or information to which section 438
of this Act applies, the Refugee Review Tribunal must give the Administrative
Appeals Tribunal written notice of the application of that section.
456
Section 9 of AAT Act not to apply to Principal Member
In spite of anything in this Act or in
any other enactment, section 9 of the AAT Act does not apply to the
Principal Member of the Refugee Review Tribunal.
Division 9—Establishment and membership of the Refugee Review Tribunal
457
Establishment of the Refugee Review Tribunal
A Refugee Review Tribunal is
established.
458
Membership of Refugee Review Tribunal
(1) The Refugee Review Tribunal consists of:
(a) a Principal Member; and
(b) a Deputy Principal Member; and
(c) such number of Senior Members and
other members as are appointed in accordance with this Act.
(2) The total number of persons appointed
under paragraphs (1)(b) and (1)(c) must not exceed the prescribed number.
459
Appointment of members
(1) The members of the Tribunal are to be
appointed by the Governor‑General.
(2) The Principal Member is to be appointed
as a full‑time member.
(3) Any other member may be appointed either
as a full‑time member or as a part‑time member.
460
Principal Member
(1) The Principal Member is the executive
officer of the Tribunal and is responsible for the overall operation and
administration of the Tribunal.
(2) The Principal Member is responsible for:
(a) monitoring the operations of the
Tribunal to ensure that those operations are as fair, just, economical,
informal and quick as practicable; and
(b) allocating the work of the
Tribunal among the members (including himself or herself) in accordance with
guidelines under subsection (3).
(3) The Principal Member may lay down written
guidelines for the allocation of the work of the Tribunal.
(4) Without limiting the generality of subsection (3),
guidelines laid down under that subsection must provide that cases where a person
affected by the decision under review is being held in immigration detention
must be given priority over other cases.
461
Period of appointment of members
(1) Subject to this Part, a member holds
office for such period, not exceeding 5 years, as is specified in the
instrument of appointment, but is eligible for re‑appointment.
462
Remuneration and allowances of members
(1) A member is to be paid such remuneration
as is determined by the Remuneration Tribunal but if no determination of that
remuneration is in operation, the member is to be paid such remuneration as is
prescribed.
(2) A member is to be paid such allowances as
are prescribed.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973.
464
Leave of absence
The Minister may grant leave of absence
to a full‑time member on such terms and conditions as to remuneration or
otherwise as the Minister determines in writing.
465
Other terms and conditions
A member holds office on such terms and
conditions (if any) in respect of matters not provided for by this Act as are
determined by the Minister in writing.
466
Resignation
A member may resign by writing signed by
him or her and sent to the Governor‑General.
467
Disclosure of interests
(1) A member who has a conflict of interest
in relation to a review by the Tribunal:
(a) must disclose the matters giving
rise to that conflict to the applicant and:
(i) if the member is the
Principal Member—to the Minister; and
(ii) in any other case—to
the Principal Member; and
(b) the member must not take part in
the review or exercise any powers in relation to the review unless:
(i) if the member is the
Principal Member—the applicant and the Minister consent; or
(ii) in any other case—the
applicant and the Principal Member consent.
(2) For the purposes of this section, a
member has a conflict of interest in relation to a review by the Tribunal if
the member has any interest, pecuniary or otherwise, that could conflict with
the proper performance of the member’s functions in relation to that review.
468
Removal from office
(1) The Governor‑General may remove a
member from office on the ground of proved misbehaviour or physical or mental
incapacity.
(2) The Governor‑General may remove a
member from office if:
(a) the member becomes bankrupt; or
(b) the member applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) the member compounds with his or
her creditors; or
(d) the member makes an assignment of
remuneration for the benefit of his or her creditors; or
(e) the member has a direct or
indirect pecuniary interest in an immigration advisory service; or
(f) the member, being a full‑time
member, is absent from duty, except on leave of absence granted under section 464,
for 14 consecutive days or 28 days in any 12 months; or
(g) the member, being a full‑time
member, engages in paid employment outside the duties of the office of member
without the written consent of the Minister; or
(h) the member fails, without
reasonable excuse, to comply with his or her obligations under section 467.
(3) In this section:
immigration advisory service means a body
that provides services in relation to the seeking by non‑citizens of
permission to enter or remain in Australia.
469
Acting appointments
(1) The Minister may appoint a person to act
in a senior office:
(a) during a vacancy in the office,
whether or not an appointment has previously been made to the office; or
(b) during any period, or during all
periods, when the holder of the office is absent from duty or from Australia or
is, for any reason, unable to perform the duties of the office.
(2) Subject to this section, a person
appointed to act during a vacancy in a senior office must not continue to act
for more than 12 months.
(3) If a person is acting in an office, the
Minister may direct that, for the purposes specified in the direction, the
person is to be taken to continue to act in the office after the normal
terminating event occurs.
(4) A direction under subsection (3)
must specify the period during which the person is to be taken to continue to
act in the office concerned.
(5) The period specified under subsection (4)
may be specified by reference to the happening of a particular event or the
existence of particular circumstances.
(6) A
direction under subsection (3):
(a) is to be given only if there is a
pending review or other special circumstances justifying the giving of the
direction; and
(b) may only be given before the
normal terminating event occurs; and
(c) has effect according to its terms
even if the holder of the office concerned is also performing the duties of the
office; and
(d) ceases to have effect 12 months
after the normal terminating event occurs.
(7) If the Tribunal is constituted for the
purposes of a review by a person acting or purporting to act under this
section, any decision of, or any direction given or other acts done by, the
Tribunal as so constituted is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(8) Anything done by or in relation to a
person acting or purporting to act under an appointment under this section is
not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(9) In this
section:
normal terminating event, in relation to an
appointment to act in an office, means:
(a) if the appointment is made under paragraph (1)(a)—the
filling of the vacancy in the office; or
(b) if the appointment is made under paragraph (1)(b)—the
holder of the office ceasing to be absent or ceasing to be unable to perform
the duties of the office.
senior office means the office of Principal
Member, the office of Deputy Principal Member or an office of Senior Member.
470
Delegation
The Principal Member may, by writing
signed by him or her, delegate to a member all or any of the Principal Member’s
powers under this Act other than the power under section 443 to refer
decisions to the AAT.
Division 10—Registry and officers
471
Registry
The Minister is to cause a Registry of
the Tribunal to be established.
472
Officers of Tribunal
(1) There is to be a Registrar of the
Tribunal and such other officers of the Tribunal as are required.
(2) The Registrar and the other officers of
the Tribunal are to be appointed by the Minister.
(3) The officers of the Tribunal have:
(a) such duties, powers and functions
as are provided by this Act and the regulations; and
(b) such other duties and functions as
the Principal Member directs.
(4) The Registrar and the other officers of
the Tribunal are to be persons engaged under the Public Service Act 1999.
473
Acting appointments
(1) The Minister may appoint a person engaged
under the Public Service Act 1999 to act in a Tribunal office:
(a) during a vacancy in the office; or
(b) during a period when the holder of
the office is absent from duty.
(2) In this section:
Tribunal office means the office of the
Registrar of the Tribunal, or the office of any other officer of the Tribunal
appointed under section 472.
Part 7A—Statutory agency for purposes of Public Service Act
473A
Statutory agency for purposes of Public Service Act
For the purposes of the Public
Service Act 1999:
(a) the Principal Member of the
Refugee Review Tribunal and the persons mentioned in subsections 407(4) and
472(4) together constitute a Statutory Agency; and
(b) the Principal Member of the
Refugee Review Tribunal is the Head of that Statutory Agency.
Part 8—Judicial review
Division 1—Privative clause
474
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed
against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition,
mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of
an administrative character made, proposed to be made, or required to be made,
as the case may be, under this Act or under a regulation or other instrument
made under this Act (whether in the exercise of a discretion or not), other
than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision
includes a reference to the following:
(a) granting, making, varying, suspending,
cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending,
cancelling, revoking or refusing to give a certificate, direction, approval,
consent or permission (including a visa);
(c) granting, issuing, suspending,
cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a
condition or restriction;
(e) making or revoking, or refusing to
make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver
up, an article;
(g) doing or refusing to do any other
act or thing;
(h) conduct preparatory to the making
of a decision, including the taking of evidence or the holding of an inquiry or
investigation;
(i) a decision on review of a
decision, irrespective of whether the decision on review is taken under this
Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2),
a decision under a provision, or under a regulation or other instrument made
under a provision, set out in the following table is not a privative clause
decision:
|
Decisions that are not privative clause decisions
|
|
Item
|
Provision
|
Subject matter of provision
|
|
1
|
section 213
|
Liability for the costs of detention, removal or
deportation
|
|
2
|
section 217
|
Conveyance of removees
|
|
3
|
section 218
|
Conveyance of deportees etc.
|
|
4
|
section 222
|
Orders restraining non‑citizens from disposing of
property
|
|
5
|
section 223
|
Valuables of detained non‑citizens
|
|
6
|
section 224
|
Dealing with seized valuables
|
|
7
|
section 252
|
Searches of persons
|
|
8
|
section 259
|
Detention of vessels for search
|
|
9
|
section 260
|
Detention of vessels/dealing with detained vessels
|
|
10
|
section 261
|
Disposal of certain vessels
|
|
11
|
Division 14 of Part 2
|
Recovery of costs
|
|
12
|
section 269
|
Taking of securities
|
|
13
|
section 272
|
Migrant centres
|
|
14
|
section 273
|
Detention centres
|
|
15
|
Part 3
|
Migration agents registration scheme
|
|
16
|
Part 4
|
Court orders about reparation
|
|
17
|
section 353A
|
Directions by Principal Member
|
|
18
|
section 354
|
Constitution of Migration Review Tribunal
|
|
19
|
section 355
|
Reconstitution of Migration Review Tribunal
|
|
20
|
section 355A
|
Reconstitution of Migration Review Tribunal for efficient
conduct of review
|
|
21
|
section 356
|
Exercise of powers of Migration Review Tribunal
|
|
22
|
section 357
|
Presiding member
|
|
23
|
Division 7 of Part 5
|
Offences
|
|
24
|
Part 6
|
Establishment and membership of Migration Review Tribunal
|
|
25
|
section 421
|
Constitution of Refugee Review Tribunal
|
|
26
|
section 422
|
Reconstitution of Refugee Review Tribunal
|
|
27
|
section 422A
|
Reconstitution of Refugee Review Tribunal for efficient
conduct of review
|
|
28
|
Division 6 of Part 7
|
Offences
|
|
29
|
Division 9 of Part 7
|
Establishment and membership of Refugee Review Tribunal
|
|
30
|
Division 10 of Part 7
|
Registry and officers
|
|
31
|
regulation 5.35
|
Medical treatment of persons in detention
|
(5) The regulations may specify that a
decision, or a decision included in a class of decisions, under this Act, or
under regulations or another instrument under this Act, is not a privative
clause decision.
(6) A decision mentioned in subsection
474(4), or specified (whether by reference to a particular decision or a class
of decisions) in regulations made under subsection 474(5), is a non‑privative
clause decision.
(7) To avoid doubt, the following decisions
are privative clause decisions within
the meaning of subsection 474(2):
(a) a decision of the Minister not to
exercise, or not to consider the exercise, of the Minister’s power under
subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F,
91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3);
(b) a decision of the Principal Member
of the Migration Review Tribunal or of the Principal Member of the Refugee
Review Tribunal to refer a matter to the Administrative Appeals Tribunal;
(c) a decision of the President of the
Administrative Appeals Tribunal to accept, or not to accept, the referral of a
decision under section 382 or 444;
(d) a decision of the Minister under
Division 13A of Part 2 to order that a thing is not to be condemned
as forfeited.
Division 2—Jurisdiction and procedure of courts
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 Magistrates Court
(1) Subject to this section, the Federal
Magistrates Court has the same original jurisdiction in relation to migration
decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no
jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or
purported privative clause decision, of the Administrative Appeals Tribunal on
review under section 500;
(c) a privative clause decision, or
purported privative clause decision, made personally by the Minister under
section 501, 501A, 501B or 501C;
(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 Magistrates Court may have in relation to non‑privative
clause decisions under section 8 of the Administrative Decisions
(Judicial Review) Act 1977 or section 44AA of the Administrative
Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause
decision or purported privative clause decision:
(a) that is reviewable under Part 5
or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable
if an application for such review had been made within a specified period.
476A
Limited jurisdiction of the Federal Court
(1) Despite any other law, including section 39B
of the Judiciary Act 1903 and section 8 of the Administrative
Decisions (Judicial Review) Act 1977, the Federal Court has original
jurisdiction in relation to a migration decision if, and only if:
(a) the Federal Magistrates Court
transfers a proceeding pending in that court in relation to the decision to the
Federal Court under section 39 of the Federal Magistrates Act 1999;
or
(b) the decision is a privative clause
decision, or a purported privative clause decision, of the Administrative
Appeals Tribunal on review under section 500; or
(c) the decision is a privative clause
decision, or purported privative clause decision, made personally by the
Minister under section 501, 501A, 501B or 501C; or
(d) the Federal Court has jurisdiction
in relation to the decision under subsection 44(3) or 45(2) of the Administrative
Appeals Tribunal Act 1975.
Note: Only non‑privative clause decisions can
be taken to the Federal Court under subsection 44(3) of the Administrative
Appeals Tribunal Act 1975 (see section 483).
(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.
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 Magistrates Court.
(2) The High Court must not remit a matter,
or any part of a matter, that relates to a migration decision to the Federal
Magistrates Court unless that court has jurisdiction in relation to the matter,
or that part of the matter, under section 476.
(3) The High Court may remit a matter, or
part of a matter, that relates to a migration decision in relation to which the
Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court.
(4) Subsection (1) has effect despite
section 44 of the Judiciary Act 1903.
477
Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates
Court for a remedy to be granted in exercise of the court’s original
jurisdiction under section 476 in relation to a migration decision must be
made to the court within 28 days of the actual (as opposed to deemed)
notification of the decision.
(2) The Federal Magistrates Court may, by
order, extend that 28 day period by up to 56 days if:
(a) an application for that order is
made within 84 days of the actual (as opposed to deemed) notification of the
decision; and
(b) the Federal Magistrates Court is
satisfied that it is in the interests of the administration of justice to do
so.
(3) Except as provided by subsection (2),
the Federal Magistrates Court must not make an order allowing, or which has the
effect of allowing, an applicant to make an application mentioned in subsection (1)
outside that 28 day period.
(4) The regulations may prescribe the way of
notifying a person of a decision for the purposes of this section.
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 28 days of the actual (as opposed to deemed) notification of
the decision.
(2) The Federal Court may, by order, extend
that 28 day period by up to 56 days if:
(a) an application for that order is
made within 84 days of the actual (as opposed to deemed) notification of the
decision; and
(b) the Federal Court is satisfied
that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2),
the Federal Court must not make an order allowing, or which has the effect of
allowing, an applicant to make an application mentioned in subsection (1)
outside that 28 day period.
(4) The regulations may prescribe the way of
notifying a person of a decision for the purposes of this section.
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,
and:
(a) if the migration decision
concerned is made on review under Part 5 or 7 or section 500—the
applicant in the review by the relevant Tribunal; or
(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, and:
(a) if the migration decision
concerned is made on review under Part 5 or 7 or section 500—the
applicant in the review by the relevant Tribunal; or
(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 Magistrates Court or Federal Court (as the
case requires) may make such orders as to costs against the Commonwealth as the
court thinks fit.
(3) If the
Attorney‑General intervenes in such a proceeding, he or she is taken to
be a party to the proceeding.
481
Operation etc. of decision
The making of an application referred to
in section 477 or 477A does not:
(a) affect the operation of the
decision; or
(b) prevent the taking of action to
implement the decision; or
(c) prevent the taking of action in
reliance on the making of the decision.
482
Changing person holding, or performing the duties of, an office
If:
(a) a person has, in the performance
of the duties of an office, made a migration decision; and
(b) the person no longer holds, or,
for whatever reason, is not performing the duties of, that office;
this Part has effect as if the decision had been made by:
(c) the person for the time being
holding or performing the duties of that office; or
(d) if there is no person for the time
being holding or performing the duties of that office or that office no longer
exists—such person as the Minister specifies.
483
Section 44 of the Administrative Appeals Tribunal Act 1975
Section 44 of the Administrative
Appeals Tribunal Act 1975 does not apply to privative clause decisions or
purported privative clause decisions.
484
Exclusive jurisdiction of High Court, Federal Court and Federal Magistrates
Court
(1) Only the High Court, the Federal Court
and the Federal Magistrates Court have jurisdiction in relation to migration
decisions.
(2) To avoid doubt, subsection (1) is
not intended to confer jurisdiction on the High Court, the Federal Court or the
Federal Magistrates Court, but to exclude other courts from jurisdiction in
relation to migration decisions.
(3) To avoid doubt, despite section 67C
of the Judiciary Act 1903, the Supreme Court of the Northern Territory
does not have jurisdiction in relation to migration decisions.
(4) To avoid doubt, jurisdiction in relation
to migration decisions is not conferred on any court under the Jurisdiction
of Courts (Cross‑vesting) Act 1987.
Part 8A—Restrictions on court proceedings
486A
Time limit on applications to the High Court for judicial review
(1) An application to the High Court for a
remedy to be granted in exercise of the court’s original jurisdiction in
relation to a migration decision must be made to the court within 28 days of
the actual (as opposed to deemed) notification of the decision.
(1A) The High Court may, by order, extend that
28 day period by up to 56 days if:
(a) an application for that order is
made within 84 days of the actual (as opposed to deemed) notification of the
decision; and
(b) the High Court is satisfied that
it is in the interests of the administration of justice to do so.
(2) Except as provided by subsection (1A),
the High Court must not make an order allowing, or which has the effect of
allowing, an applicant to make an application mentioned in subsection (1)
outside that 28 day period.
(3) The regulations may prescribe the way of
notifying a person of a decision for the purposes of this section.
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 subsection 486A(1) 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
Magistrates Court that raise an issue in connection with visas (including if a
visa is not granted or has been cancelled), deportation, 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 Magistrates Court
or the Federal Court
(1) Only the persons mentioned in this
section may commence or continue a proceeding in the Federal Magistrates Court
or the Federal Court that raises an issue:
(a) in connection with visas
(including if a visa is not granted or has been cancelled), deportation, or
removal of unlawful non‑citizens; and
(b) that relates to the validity,
interpretation or effect of a provision of this Act or the regulations;
(whether or not the proceeding raises any other issue).
(2) Those persons are:
(a) a party to a review mentioned in
section 479; or
(b) the Attorney‑General of the
Commonwealth or of a State or a Territory; or
(c) a person who commences or
continues the proceeding in performing the person’s statutory functions; or
(d) any other person prescribed by the
regulations.
(3) This section applies to proceedings
within the Federal Magistrates Court’s jurisdiction under section 476 of
this Act, section 44 of the Judiciary Act 1903, section 32AB
of the Federal Court of Australia Act 1976 or any other law.
(3A) This section applies to proceedings
transferred to the Federal Court under section 39 of the Federal
Magistrates Act 1999 and proceedings in which the Federal Court has
jurisdiction under paragraph 476A(1)(b) or (c).
(4) To avoid doubt, nothing in this section
allows a person to commence or continue a proceeding that the person could not
otherwise commence or continue.
Relationship with other laws
(5) This section has effect despite any other
law.
(6) However, subsection (5) does not
apply to a provision of an Act if the provision:
(a) commences after this section
commences; and
(b) specifically states that it
applies despite this section.
486D
Disclosing other judicial review proceedings
(1) A person must not commence a proceeding
in the Federal Magistrates Court in relation to a tribunal decision unless the
person, when commencing the proceeding, discloses to the court any judicial
review proceeding already brought by the person in that or any other court in
relation to that decision.
(2) A person must not commence a proceeding
in the Federal Court seeking the exercise of the court’s original jurisdiction
in relation to a tribunal decision unless the person, when commencing the
proceeding, discloses to the court any judicial review proceeding already
brought by the person in that or any other court in relation to that decision.
(3) A person must not commence a proceeding
in the High Court seeking the exercise of the court’s original jurisdiction in
relation to a tribunal decision unless the person, when commencing the
proceeding, discloses to the court any judicial review proceeding already
brought by the person in that or any other court in relation to that decision.
(4) Proceedings required to be disclosed under
subsection (1), (2) or (3) include proceedings brought before the
commencement of this section.
(5) In this section:
judicial review proceeding, in relation to a
tribunal decision, means:
(a) a proceeding in the Federal Magistrates
Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court
seeking the exercise of the court’s original jurisdiction in relation to the
tribunal decision; or
(c) a proceeding in the High Court
seeking the exercise of the court’s original jurisdiction in relation to the
tribunal decision.
tribunal decision means a privative clause
decision, or purported privative clause decision, made on review by a Tribunal
under Part 5 or 7 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:
lawyer has the same meaning as in Part 3.
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 9—Miscellaneous
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
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 quarantine officer,
within the meaning of the Quarantine Act 1908, to perform for the
purposes of 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.
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 (as
defined in the Privacy Act 1988).
(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, 243 or 244 that is alleged to have been
committed after the commencement of this subsection may be instituted at any
time.
(3) A prosecution of a person for an offence
against section 232A, 233 or 233A that is alleged to have been committed
after the commencement of this subsection may be instituted at any time.
493
Conduct of directors, servants and agents
(1) Where, in proceedings for an offence
against this Act or the regulations, 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, servant or agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant 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,
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, 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
a servant or agent of the person within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
person other than a body corporate by a servant 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,
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 offshore entry persons
(1) The following proceedings against the
Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to an
offshore entry by an offshore entry person;
(b) proceedings relating to the status
of an offshore entry person as an unlawful non‑citizen during any part of
the ineligibility period;
(c) proceedings relating to the
lawfulness of the detention of an offshore entry person during the
ineligibility period, being a detention based on the status of the person as an
unlawful non‑citizen;
(d) proceedings relating to the
exercise of powers under section 198A.
(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 offshore entry until the time when the person next ceases to be
an unlawful non‑citizen.
offshore entry means an entry into Australia
that occurs:
(a) at an excised offshore place; and
(b) after the excision time for the
offshore place concerned.
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;
(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
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: Under section 494D a person may give the
Minister the name of an authorised recipient who is to receive documents on the
person’s behalf.
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.
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.
Transmission by fax, e‑mail or other electronic
means
(5) Another method consists of the Minister transmitting
the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other
electronic address, as the case may be, provided to the Minister by the
recipient for the purposes of receiving documents.
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.
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, e‑mail 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, e‑mail or other electronic means), the person is taken
to have received the document at the end of the day on which the document is
transmitted.
(6) Subsection (5) applies despite
section 14 of the Electronic Transactions Act 1999.
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 do
things on behalf of the first person that consist of, or include, receiving
documents in connection with matters arising under this Act or the regulations,
the Minister must give the authorised recipient, instead of the first person,
any documents 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) The first person 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.
(4) The Minister may communicate with the
first person by means other than giving a document to the first person,
provided the Minister gives the authorised recipient notice of the
communication.
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);
(b) any provision of this Act or of
the regulations that the Minister, by legislative instrument, determines to be
part of the designated migration law.
495B
Minister may substitute more favourable decisions for certain computer‑based
decisions
(1) The Minister may substitute a decision
(the substituted decision) for a decision (the initial
decision) made by the operation of a computer program under an
arrangement made under subsection 495A(1) if:
(a) a certificate under paragraph
271(1)(l) relates to the computer program and to the initial decision; and
(b) the certificate states that the
computer program was not functioning correctly; and
(c) the substituted decision could
have been made under the same provision of the designated migration law as the
initial decision; and
(d) the substituted decision is more
favourable to the applicant.
(2) The Minister does not have a duty to
consider whether to exercise the power under subsection (1) in respect of
any decision, whether he or she is requested to do so by the applicant or by
any other person, or in any other circumstances.
(3) Subsection (1) has effect despite:
(a) any law of the Commonwealth; or
(b) any rule of common law;
to the contrary effect.
496
Delegation
(1) The Minister may, by writing signed by
him or her, delegate to a person any of the Minister’s powers under this Act.
(1A) The delegate is, in the exercise of a power
delegated under subsection (1), subject to the directions of the Minister.
(2) The Secretary may, by writing signed by
him or her, delegate to a person any of the Secretary’s powers under this Act.
(3) If an
application for a visa that has a health criterion is made, the Minister may:
(a) delegate to a person the power to
consider and decide whether that criterion is satisfied; and
(b) consider and decide, or delegate
to another person the power to consider and decide, all other aspects of the
application.
(4) To avoid
doubt, if there is a delegation described in paragraph (3)(a) in relation
to an application for a visa:
(a) Subdivision AB of Division 3
of Part 2 has effect accordingly; and
(b) for the purposes of subsection
65(1), the Minister is satisfied or not satisfied that the health criterion for
the visa has been satisfied if the delegate who was given that delegation is so
satisfied or not so satisfied, as the case may be.
(5) Subsection (1A) does not limit
subsection 499(1).
497
Delegate not required to perform certain administrative tasks
(1) If the Minister delegates the power to
grant or refuse to grant visas, the delegation does not require the delegate
personally to perform any task in connection with the grant or refusal, except
the taking of a decision in each case whether or not a visa should be granted.
(2) If the Minister delegates the power to
cancel visas, the delegation does not require the delegate personally to
perform any task in connection with the cancellation, except the taking of a
decision in each case whether a visa should be cancelled.
(3) Nothing in subsection (1) or (2)
shall be taken to imply that:
(a) a person on whom a power is
conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and
clerical tasks connected with the exercise of the power.
498
Exercise of powers under Act
(1) The powers conferred by or under this Act
shall be exercised in accordance with any applicable regulations under this
Act.
(2) Nothing in this section shall be taken to
limit the operation of subsection 29(4).
499
Minister may give directions
(1) The Minister may give written directions
to a person or body having functions or powers under this Act if the directions
are about:
(a) the performance of those functions;
or
(b) the exercise of those powers.
(1A) For example, a direction under subsection (1)
could require a person or body to exercise the power under section 501
instead of the power under section 200 (as it applies because of section 201)
in circumstances where both powers apply.
(2) Subsection (1) does not empower the
Minister to give directions that would be inconsistent with this Act or the
regulations.
(2A) A person or body must comply with a
direction under subsection (1).
(3) The Minister shall cause a copy of any
direction given under subsection (1) to be laid before each House of the
Parliament within 15 sitting days of that House after that direction was given.
(4) Subsection (1) does not limit
subsection 496(1A).
500
Review of decision
(1) Applications may be made to the
Administrative Appeals Tribunal for review of:
(a) decisions of the Minister under
section 200 because of circumstances specified in section 201; or
(b) decisions of a delegate of the
Minister under section 501; or
(c) a decision to refuse to grant a
protection visa, or to cancel a protection visa, relying on one or more of the
following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
other than decisions to which a certificate under section 502
applies.
(2) A person
is not entitled to make an application under paragraph (1)(a) unless:
(a) the person is an Australian
citizen; or
(b) the person is a lawful non‑citizen
whose continued presence in Australia is not subject to any limitation as to
time imposed by law.
(3) A person is not entitled to make an
application under subsection (1) for review of a decision referred to in paragraph (1)(b)
or (c) unless the person would be entitled to seek review of the decision under
Part 5 or 7 if the decision had been made on another ground.
(4) The
following decisions are not reviewable under Part 5 or 7:
(a) a decision under section 200
because of circumstances specified in section 201;
(b) a decision under section 501;
(c) a decision to refuse to grant a protection
visa, or to cancel a protection visa, relying on one or more of the following
Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2).
(5) In giving a direction under the Administrative
Appeals Tribunal Act 1975 as to the persons who are to constitute the
Tribunal for the purposes of a proceeding for review of a decision referred to
in subsection (1), the President must have regard to:
(a) the degree of public importance or
complexity of the matters to which that proceeding relates; and
(b) the status of the position or
office held by the person who made the decision that is to be reviewed by the
Tribunal; and
(c) the degree to which the matters to
which that proceeding relates concern the security, defence or international
relations of Australia; and
(d) if:
(i) the person to whom the
decision relates has been convicted of, or sentenced for, an offence; and
(ii) that conviction or
sentence is relevant to the matters to which that proceeding relates;
the seriousness of that offence;
and
(e) if:
(i) the person to whom the
decision relates 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; and
(ii) that acquittal is relevant
to the matters to which that proceeding relates;
the seriousness of that offence;
and must not have regard to any other matters.
(5A) Section 23B of the Administrative
Appeals Tribunal Act 1975 does not apply in relation to a proceeding for
review of a decision referred to in subsection (1) of this section.
(6) Where an application has been made to the
Tribunal for the review of a decision under section 200 ordering the
deportation of a person, the order for the deportation of the person shall not be
taken for the purposes of section 253 to have ceased or to cease to be in
force by reason only of any order that has been made by:
(a) the Tribunal; or
(b) a presidential member under
section 41 of the Administrative Appeals Tribunal Act 1975; or
(c) the Federal Court of Australia or
a Judge of that Court under section 44A of that Act; or
(d) the Federal Magistrates Court or a
Federal Magistrate under section 44A of that Act.
(6A) If a decision under section 501 of
this Act relates to a person in the migration zone, section 28 of the Administrative
Appeals Tribunal Act 1975 does not apply to the decision.
(6B) If a decision under section 501 of
this Act relates to a person in the migration zone, an application to the
Tribunal for a review of the decision must be lodged with the Tribunal within 9
days after the day on which the person was notified of the decision in
accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and
subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal
Act 1975 do not apply to the application.
(6C) If a decision under section 501
relates to a person in the migration zone, an application to the Tribunal for a
review of the decision must be accompanied by, or by a copy of:
(a) the document notifying the person
of the decision in accordance with subsection 501G(1); and
(b) one of the sets of documents given
to the person under subsection 501G(2) at the time of the notification of the
decision.
(6D) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person
in the migration zone;
section 37 of the Administrative Appeals Tribunal
Act 1975 does not apply in relation to the decision.
(6E) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person
in the migration zone;
the Registrar, a District Registrar or a Deputy Registrar
of the Tribunal must notify the Minister, within the period and in the manner
specified in the regulations, that the application has been made. Accordingly,
subsection 29(11) of the Administrative Appeals Tribunal Act 1975 does
not apply in relation to the application.
(6F) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the
decision relates to a person in the migration zone;
then:
(c) the Minister must lodge with the
Tribunal, within 14 days after the day on which the Minister was notified that
the application had been made, 2 copies of every document, or part of a
document, that:
(i) is in the Minister’s
possession or under the Minister’s control; and
(ii) was relevant to the
making of the decision; and
(iii) contains non‑disclosable
information; and
(d) the Tribunal may have regard to
that non‑disclosable information for the purpose of reviewing the
decision, but must not disclose that non‑disclosable information to the
person making the application.
(6G) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person
in the migration zone;
the Tribunal must not:
(c) hold a hearing (other than a
directions hearing); or
(d) make a decision under section 43
of the Administrative Appeals Tribunal Act 1975;
in relation to the decision under review until at least 14
days after the day on which the Minister was notified that the application had
been made.
(6H) If:
(a) an application is made to the Tribunal
for a review of a decision under section 501; and
(b) the decision relates to a person
in the migration zone;
the Tribunal must not have regard to any information
presented orally in support of the person’s case unless the information was set
out in a written statement given to the Minister at least 2 business days
before the Tribunal holds a hearing (other than a directions hearing) in
relation to the decision under review.
(6J) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501; and
(b) the
decision relates to a person in the migration zone;
the Tribunal must not have regard to any document
submitted in support of the person’s case unless a copy of the document was
given to the Minister at least 2 business days before the Tribunal holds a
hearing (other than a directions hearing) in relation to the decision under
review. However, this does not apply to documents given to the person or
Tribunal under subsection 501G(2) or subsection (6F) of this section.
(6K) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person
in the migration zone; and
(c) the Tribunal is of the opinion
that particular documents, or documents included in a particular class of
documents, may be relevant in relation to the decision under review;
then:
(d) the Tribunal may cause to be
served on the Minister a notice in writing stating that the Tribunal is of that
opinion and requiring the Minister to lodge with the Tribunal, within a time
specified in the notice, 2 copies of each of those documents that is in the
Minister’s possession or under the Minister’s control; and
(e) the Minister must comply with any
such notice.
(6L) If:
(a) an application is made to the
Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person
in the migration zone; and
(c) the Tribunal has not made a
decision under section 42A, 42B, 42C or 43 of the Administrative Appeals
Tribunal Act 1975 in relation to the decision under review within the
period of 84 days after the day on which the person was notified of the
decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have
made a decision under section 43 of the Administrative Appeals Tribunal
Act 1975 to affirm the decision under review.
(7) In this section, decision
has the same meaning as in the Administrative Appeals Tribunal Act 1975.
(8) In this
section:
business day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian
Capital Territory; or
(d) a public holiday in the place
concerned.
500A
Refusal or cancellation of temporary safe haven visas
Refusal or cancellation of temporary safe haven visas
(1) The Minister may refuse to grant to a
person a temporary safe haven visa, or may cancel a person’s temporary safe
haven visa if, in the Minister’s opinion:
(a) the person has or has had an
association with someone else, or with a group or organisation, whom the
Minister reasonably suspects has been or is involved in criminal conduct; or
(b) having regard to either or both of
the following:
(i) the person’s past and
present criminal conduct;
(ii) the person’s past and
present general conduct;
the person is not of good
character; or
(c) in the event the person were
allowed to enter or to remain in Australia, there is a significant risk that
the person would:
(i) engage in criminal
conduct in Australia; or
(ii) harass, molest,
intimidate or stalk another person in Australia (see subsection (2)); or
(iii) vilify a segment of
the Australian community; or
(iv) incite discord in the
Australian community or in a segment of that community; or
(v) represent a danger to
the Australian community or to a segment of that community, whether by way of
being liable to become involved in activities that are disruptive to, or in
violence threatening harm to, that community or segment, or in any other way;
or
(d) the
person is a threat to national security; or
(e) the person’s presence in Australia
would prejudice Australia’s international relations.
(2) For the purposes of subsection (1),
conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or
threatened violence, to the person; or
(b) it consists only of damage, or
threatened damage, to property belonging to, in the possession of, or used by,
the person.
Refusal or cancellation of temporary safe haven visas
(3) The Minister may refuse to grant to a
person a temporary safe haven visa, or may cancel a person’s temporary safe
haven visa if:
(a) the person has been sentenced to
death (see subsection (4)); or
(b) the person has been sentenced to
imprisonment for life (see subsection (4)); or
(c) the person has been sentenced to a
term of imprisonment of 12 months or more (see subsections (4) and (5)).
(4) For the purposes of subsection (3),
a sentence imposed on a person is to be disregarded if:
(a) the conviction concerned has been
quashed or otherwise nullified; or
(b) the person has been pardoned in
relation to the conviction concerned.
(5) For the purposes of subsection (3),
if a person has been convicted of an offence and the court orders the person to
participate in:
(a) a residential drug rehabilitation
scheme; or
(b) a residential program for the
mentally ill;
the person is taken to have been sentenced to a term of
imprisonment equal to the number of days the person is required to participate
in the scheme or program.
Minister to exercise power personally
(6) The powers under subsections (1) and
(3) may only be exercised by the Minister personally.
Minister to table decision
(7) If the Minister makes a decision under subsection (1)
or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the
Minister is to cause to be laid before each House of the Parliament a statement
that:
(a) sets out the decision; and
(b) sets out the reasons for the
decision.
(8) A statement under subsection (7) is
not to include:
(a) the name of the non‑citizen;
or
(b) any information that may identify
the non‑citizen; or
(c) if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned—the name of that other person or
any information that may identify that other person.
(9) A statement under subsection (7) is
to be laid before each House of the Parliament within 15 sitting days of that
House after:
(a) if the decision is made between 1 January
and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision is made between 1 July
and 31 December (inclusive) in a year—1 January in the following
year.
Minister to notify person of decision
(10) If the Minister makes a decision under subsection (1)
or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a
person’s temporary safe haven visa, the Minister must notify the person of the
decision. However, failure to do so does not affect the validity of the
decision.
Natural justice and code of procedure not to apply to
decision
(11) The rules of natural justice, and the code
of procedure set out in Subdivision AB of Division 3 of Part 2, do
not apply to a decision under subsection (1) or (3).
Automatic refusal to grant visa to an immediate family
member
(12) If the Minister refuses to grant a person
a temporary safe haven visa under subsection (1) or (3), then the Minister
is also taken to have refused to grant a temporary safe haven visa to each immediate
family member of the person. The immediate family member need not be notified
of the refusal.
Automatic cancellation of immediate family member’s
visa
(13) If a person’s temporary safe haven visa is
cancelled under subsection (1) or (3), then a temporary safe haven visa
held by each immediate family member of the person is also cancelled. The
immediate family member need not be notified of the cancellation.
Definitions
(14) In this section:
court includes:
(a) the Australian Military Court; and
(b) a court martial or similar
military tribunal of another country.
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.
(4) The power under subsection (3) may
only be exercised by the Minister personally.
(5) The rules of natural justice, and the
code of procedure set out in Subdivision AB of Division 3 of Part 2,
do not apply to a decision under subsection (3).
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
(b) 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
(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 significant 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.
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 (whether on one or more occasions), where the
total of those terms is 2 years 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.
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 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.
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) the Australian Military Court; and
(b) a court martial or similar
military tribunal of another country.
imprisonment includes any form of punitive
detention in a facility or institution.
sentence includes any form of determination
of the punishment for an offence.
Note 1: Visa is defined by section 5
and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1)
or (2), see section 501G.
Note 3: For notification of decisions under subsection (3),
see section 501C.
501A
Refusal or cancellation of visa—setting aside and substitution of non‑adverse
decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals
Tribunal;
makes a decision (the original decision):
(c) not to exercise the power
conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power
conferred by subsection 501(2) to cancel a visa that has been granted to a
person;
whether or not the person satisfies the delegate or
Tribunal that the person passes the character test and whether or not the
delegate or Tribunal reasonably suspects that the person does not pass the
character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original
decision and:
(a) refuse to grant a visa to the
person; or
(b) cancel
a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects
that the person does not pass the character test (as defined by section 501);
and
(d) the person does not satisfy the
Minister that the person passes the character test; and
(e) the Minister is satisfied that the
refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The
Minister may set aside the original decision and:
(a) refuse to grant a visa to the
person; or
(b) cancel a visa that has been
granted to the person;
if:
(c) the Minister reasonably suspects
that the person does not pass the character test (as defined by section 501);
and
(d) the Minister is satisfied that the
refusal or cancellation is in the national interest.
(4) The rules of natural justice, and the
code of procedure set out in Subdivision AB of Division 3 of Part 2,
do not apply to a decision under subsection (3).
(4A) Under subsection (2) or (3), the
Minister may cancel a visa that has been granted to a person even if the
original decision under subsection (1) was a decision not to exercise the
power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
(5) The power under subsection (2) or
(3) may only be exercised by the Minister personally.
(6) The Minister does not have a duty to
consider whether to exercise the power under subsection (2) or (3) in
respect of the original decision, whether or not the Minister is requested to
do so, or in any other circumstances.
Decision not reviewable under Part 5 or 7
(7) A decision under subsection (2) or
(3) is not reviewable under Part 5 or 7.
Note 1: For notification of decisions under subsection (2),
see section 501G.
Note 2: For notification of decisions under subsection (3),
see section 501C.
501B
Refusal or cancellation of visa—setting aside and substitution of adverse
decision under subsection 501(1) or (2)
(1) This section applies if a delegate of the
Minister makes a decision (the original decision) under
subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a
visa that has been granted to a person.
(2) The Minister
may set aside the original decision and:
(a) refuse to grant a visa to the
person; or
(b) cancel
a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects
that the person does not pass the character test (as defined by section 501);
and
(d) the person does not satisfy the
Minister that the person passes the character test; and
(e) the Minister is satisfied that the
refusal or cancellation is in the national interest.
(3) The power under subsection (2) may
only be exercised by the Minister personally.
(4) A decision under subsection (2) is
not reviewable under Part 5 or 7.
(5) To avoid doubt, the Minister may set
aside the original decision in accordance with subsection (2) even if the
original decision is the subject of an application for review by the
Administrative Appeals Tribunal.
Note: For notification of decisions under this
section, see section 501G.
501C
Refusal or cancellation of visa—revocation of decision under subsection 501(3)
or 501A(3)
(1) This section applies if the Minister
makes a decision (the original decision) under subsection 501(3)
or 501A(3) to:
(a) refuse to grant a visa to a
person; or
(b) cancel a visa that has been
granted to a person.
(2) For the
purposes of this section, relevant information is information
(other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of
the reason, for making the original decision; and
(b) is specifically about the person
or another person and is not just about a class of persons of which the person
or other person is a member.
(3) As soon as
practicable after making the original decision, the Minister must:
(a) give the person, in the way that
the Minister considers appropriate in the circumstances:
(i) a written notice that
sets out the original decision; and
(ii) particulars of the
relevant information; and
(b) except in a case where the person
is not entitled to make representations about revocation of the original
decision (see subsection (10))—invite the person to make representations
to the Minister, within the period and in the manner ascertained in accordance
with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original
decision if:
(a) the person makes representations
in accordance with the invitation; and
(b) the person satisfies the Minister
that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may
only be exercised by the Minister personally.
(6) If the Minister revokes the original
decision, the original decision is taken not to have been made. This subsection
has effect subject to subsection (7).
(7) Any detention of the person that occurred
during any part of the period:
(a) beginning when the original
decision was made; and
(b) ending
at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim
against the Commonwealth, an officer or any other person because of the
detention.
(8) If the Minister makes a decision (the subsequent
decision) to revoke, or not to revoke, the original decision, the
Minister must cause notice of the making of the subsequent decision to be laid
before each House of the Parliament within 15 sitting days of that House after
the day on which the subsequent decision was made.
(9) If the person does not make
representations in accordance with the invitation, the Minister must cause
notice of that fact to be laid before each House of the Parliament within 15
sitting days of that House after the last day on which the representations
could have been made.
(10) The regulations may provide that, for the
purposes of this section:
(a) a person; or
(b) a
person included in a specified class of persons;
is not entitled to make representations about revocation
of an original decision unless the person is a detainee.
(11) A decision not to exercise the power
conferred by subsection (4) is not reviewable under Part 5 or 7.
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 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 or 501B 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.
(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.
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 or 501B to refuse to grant a visa
to a person or to cancel a visa that has been granted to a person.
(2) If:
(a) the person has made another visa
application that has neither been granted nor refused; and
(b) the visa applied for is neither a
protection visa nor a visa specified in the regulations for the purposes of
this subsection;
the Minister is taken to have decided to refuse that other
application.
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a
protection visa nor a visa specified in the regulations for the purposes of
this subsection;
the Minister is taken to have decided to cancel that other
visa.
(4) If the decision referred to in subsection (1)
is set aside or revoked, the decision that the Minister is taken to have made
under subsection (2) or (3) is also set aside or revoked, as the case may
be.
(5) A decision
that the Minister is taken to have made under subsection (2) or (3) is not
reviewable under Part 5 or 7.
Note: For notification of decisions under this
section, see section 501G.
501G
Refusal or cancellation of visa—notification of decision
(1) If a decision is made under subsection
501(1) or (2) or 501A(2) or section 501B or 501F to:
(a) refuse to grant a visa to a
person; or
(b) 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) and the person has a right to have the decision reviewed by the
Administrative Appeals Tribunal:
(i) states that the
decision can be reviewed by the Tribunal; and
(ii) states the time in
which the application for review may be made; and
(iii) states who can apply
to have the decision reviewed; and
(iv) states where the
application for review can be made; and
(v) in a case where the
decision relates to a person in the migration zone—sets out the effect of
subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such
additional information (if any) as is prescribed.
(2) If the
decision referred to in subsection (1):
(a) was made by a delegate of the
Minister under subsection 501(1) or (2); and
(b) is reviewable by the
Administrative Appeals Tribunal; and
(c) relates
to a person in the migration zone;
the notice under subsection (1) that relates to the
decision must be accompanied by 2 copies of every document, or part of a
document, that:
(d) is in the delegate’s possession or
under the delegate’s control; and
(e) was relevant to the making of the
decision; and
(f) does not contain non‑disclosable
information.
(3) A notice under subsection (1) must
be given in the prescribed manner.
(4) A failure to comply with this section in
relation to a decision does not affect the validity of the decision.
501H
Refusal or cancellation of visa—miscellaneous provisions
Additional powers
(1) A power under section 501, 501A or
501B 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, 501C or 501F.
501J
Refusal or cancellation of protection visa—Minister may substitute more
favourable decision
(1) If the Minister thinks that it is in the public
interest to do so, the Minister may set aside an AAT protection visa decision
and substitute another decision that is more favourable to the applicant in the
review, whether or not the Administrative Appeals Tribunal had the power to
make that other decision.
(2) For the purposes of this section, an AAT
protection visa decision is a decision of the Administrative Appeals
Tribunal in relation to an application for, or the cancellation of, a
protection visa.
(3) In exercising the power under subsection (1),
the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2
or by the regulations, but is bound by all other provisions of this Act.
(4) The power under subsection (1) may
only be exercised by the Minister personally.
(5) If the Minister substitutes a decision
under subsection (1), the Minister must cause to be laid before each House
of the Parliament a statement that:
(a) sets out the decision of the
Administrative Appeals Tribunal; and
(b) sets out the decision substituted
by the Minister; and
(c) sets out the reasons for the
Minister’s decision, referring in particular to the Minister’s reasons for
thinking that his or her actions are in the public interest.
(6) A
statement made under subsection (5) is not to include:
(a) the name of the applicant; or
(b) any information that may identify
the applicant; or
(c) if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned—the name of that other person or
any information that may identify that other person.
(7) A statement under subsection (5) is
to be laid before each House of the Parliament within 15 sitting days of that
House after:
(a) if the decision is made between 1 January
and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July
and 31 December (inclusive) in a year—1 January in the following
year.
(8) The Minister does not have a duty to
consider whether to exercise the power under subsection (1) in respect of
any decision, whether he or she is requested to do so by the applicant or by
any other person, or in any other circumstances.
501K
Identity of applicants for protection visas not to be published by the
Administrative Appeals Tribunal
(1) This section applies to a review by the
Administrative Appeals Tribunal if the review relates to a person in the
person’s capacity as:
(a) a person who applied for a
protection visa; or
(b) a person who applied for a
protection‑related bridging visa; or
(c) a person whose protection visa has
been cancelled; or
(d) a person whose protection‑related
bridging visa has been cancelled.
(2) The Administrative Appeals Tribunal must
not publish (in electronic form or otherwise), in relation to the review, any
information which may identify:
(a) the person; or
(b) any relative or other dependant of
the person.
(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.
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
(iii) to refuse to grant a
protection visa, or to cancel a protection visa, relying on one or more of the
following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
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 or 501B;
or
(c) to refuse to grant a protection
visa, or to cancel a protection visa, relying on one or more of the following
Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
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.
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 or 501C:
(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 or 501C; 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 or 501C.
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 or 501C; 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 Magistrates
Court; and
(b) the officer must not give the
information in evidence before the Federal Court or the Federal Magistrates
Court.
The information may only be considered by the Federal
Court or the Federal Magistrates Court if a fresh disclosure of the information
is made in accordance with:
(c) a declaration under subsection (3);
or
(d) subsection 503B(6).
(5) If a person divulges or communicates
particular information to a tribunal in accordance with a declaration under subsection (3),
the member or members of the tribunal must not divulge or communicate the
information to any person (other than the Minister or a Commonwealth officer).
(5A) If a person divulges or communicates
particular information to a tribunal in accordance with a declaration under subsection (3):
(a) the member or members of the
tribunal must not be required to divulge or communicate the information to the
Federal Court or the Federal Magistrates Court; and
(b) the member or members of the
tribunal must not give the information in evidence before the Federal Court or
the Federal Magistrates Court.
The information may only be considered by the Federal
Court or the Federal Magistrates Court if a fresh disclosure of the information
is made in accordance with:
(c) a declaration under subsection (3);
or
(d) subsection 503B(6).
(6) This
section has effect despite anything in:
(a) any
other provision of this Act (other than sections 503B and 503C); and
(b) any law (whether written or
unwritten) of a State or a Territory.
(7) To avoid
doubt, if information is divulged or communicated:
(a) in accordance with paragraph (1)(a)
or (b); or
(b) in accordance with a declaration
under subsection (3);
the divulging or communication, as the case may be, is
taken, for the purposes of the Information Privacy Principles set out in
section 14 of the Privacy Act 1988, to be authorised by law.
(8) If any Act (whether passed before or
after the commencement of this section) provides for information to be given,
that Act has effect subject to this section unless that Act expressly provides
otherwise.
Note: This section is specified in Schedule 3
to the Freedom of Information Act 1982 with the effect that documents
containing information protected from disclosure by this section are exempt
documents under that Act.
(9) In this
section:
Australian law enforcement or intelligence body
means a body, agency or organisation that is responsible for, or deals with,
law enforcement, criminal intelligence, criminal investigation, fraud or
security intelligence in, or in a part of, Australia.
authorised migration officer means a
Commonwealth officer whose duties consist of, or include, the performance of
functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as
in section 70 of the Crimes Act 1914.
Note: A Minister is not a Commonwealth officer.
foreign law enforcement body means a body,
agency or organisation that is responsible for, or deals with, law enforcement,
criminal intelligence, criminal investigation, fraud or security intelligence
in a foreign country or a part of a foreign country.
gazetted agency means:
(a) in
the case of an Australian law enforcement or intelligence body—a body specified
in a notice published by the Minister in the Gazette; or
(b) in the case of a foreign law
enforcement body—a body in a foreign country, or a part of a foreign country,
that is a foreign country, or part of a foreign country, specified in a notice
published by the Minister in the Gazette; or
(c) a war crimes tribunal established
by or under international arrangements or international law.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003 or subsection 46(3) of the
Acts Interpretation Act 1901.
503B
Protection of confidential information disclosed to the Federal Court or the
Federal Magistrates Court—permanent non‑disclosure orders
Court may make non‑disclosure orders
(1) If:
(a) either:
(i) information is
communicated to an authorised migration officer by a gazetted agency on
condition that it be treated as confidential information and the information is
relevant to the exercise of a power under section 501, 501A, 501B or 501C;
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 Magistrates Court that relate to section 501, 501A,
501B or 501C; and
(c) no declaration is in force under
subsection 503A(3) authorising the disclosure of the information to the Federal
Court or the Federal Magistrates Court for the purposes of the substantive
proceedings;
the Federal Court or the Federal Magistrates Court may, on
application by the Minister, make such orders as the Federal Court or the
Federal Magistrates Court considers appropriate for the purpose of ensuring
that, in the event that such a declaration comes into force and the information
is disclosed to the Federal Court or the Federal Magistrates Court, the
information is not divulged or communicated to:
(d) the applicant in relation to the
substantive proceedings; or
(e) the legal representative of the
applicant in relation to the substantive proceedings; or
(f) any other member of the public.
(2) The Federal Court’s or Federal
Magistrates Court’s orders under subsection (1) include:
(a) an order that some or all of the
members of the public are to be excluded during the whole or a part of the
hearing of the substantive proceedings; or
(b) an order that no report of the
whole of, or a specified part of, or relating to, the substantive proceedings
is to be published; or
(c) an order for ensuring that no
person, without the consent of the Federal Court or the Federal Magistrates
Court, has access to a file or a record of the Federal Court or the Federal
Magistrates Court that contains the information.
(3) Subsection (2) does not limit subsection (1).
(4) The powers of the Federal Court under
this section are to be exercised by a single Judge, and the powers of the
Federal Magistrates Court under this section are to be exercised by a single
Federal Magistrate.
Criteria for making non‑disclosure order
(5) In exercising its powers under subsection (1),
the Federal Court or the Federal Magistrates Court must have regard to all of
the following matters:
(a) the fact that the information was
communicated, or originally communicated, to an authorised migration officer by
a gazetted agency on condition that it be treated as confidential information;
(b) Australia’s relations with other
countries;
(c) the need to avoid disruption to
national and international efforts relating to law enforcement, criminal
intelligence, criminal investigation and security intelligence;
(d) in a case where the information
was derived from an informant—the protection and safety of informants and of persons
associated with informants;
(e) the protection of the technologies
and methods used (whether in or out of Australia) to collect, analyse, secure
or otherwise deal with, criminal intelligence or security intelligence;
(f) Australia’s national security;
(g) the fact that the disclosure of
information may discourage gazetted agencies and informants from giving
information in the future;
(h) the effectiveness of the
investigations of official inquiries and Royal Commissions;
(i) the interests of the
administration of justice;
(j) such other matters (if any) as
are specified in the regulations;
and must not have regard to any other matters.
Disclosure of information for the purposes of deciding
whether or not to make a non‑disclosure order
(6) If an application is made under subsection (1)
in relation to particular information, subsections 503A(1) and (2) do not
prevent the disclosure of the information to the Federal Court or the Federal
Magistrates Court for the purposes of enabling the Federal Court or the Federal
Magistrates Court to make a decision on the application.
(7) If information is disclosed to the
Federal Court or the Federal Magistrates Court under subsection (6):
(a) the information is not to be
treated as having been disclosed to the Federal Court or the Federal
Magistrates Court for the purposes of the substantive proceedings; and
(b) the information may only be
considered by the Federal Court or the Federal Magistrates Court for the
purposes of the substantive proceedings if a fresh disclosure of the
information is made in accordance with a declaration under subsection 503A(3).
Variation or revocation of non‑disclosure order
(8) The Federal Court or the Federal
Magistrates Court may, by order, vary or revoke an order made by it under subsection (1)
if both:
(a) the Minister; and
(b) the applicant in relation to the
substantive proceedings;
consent to the variation or revocation.
Withdrawal of application for non‑disclosure
order
(9) The Minister may withdraw an application
under subsection (1) at any time.
Declarations under subsection 503A(3)
(10) This section does not prevent the Minister
from making a declaration at any time under subsection 503A(3) authorising the
disclosure of the information to the Federal Court or the Federal Magistrates
Court for the purposes of the substantive proceedings, even if that time occurs
while the Federal Court or the Federal Magistrates Court is considering whether
to make an order under subsection (1).
(11) To avoid doubt, the Minister may refuse to
make a declaration under subsection 503A(3) even if the Federal Court or the
Federal Magistrates Court has made an order under subsection (1) of this
section in relation to the information concerned.
Offence
(12) A person is guilty of an offence if:
(a) an order is in force under subsection (1);
and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes
the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(13) This section has effect despite anything in:
(a) any other provision of this Act;
or
(b) any other law of the Commonwealth.
Applicant
(14) For the purposes of this section, the
table has effect:
|
Applicant
|
|
Item
|
In the case of these
proceedings...
|
the applicant
is...
|
|
1
|
Proceedings within the Federal Magistrates Court’s
jurisdiction under section 476 of this Act, including proceedings
arising from:
(a) a remittal under section 44 of the Judiciary Act
1903; or
(b) a transfer under section 32AB
of the Federal Court of Australia Act 1976.
|
the person seeking the remedy
to be granted in exercise of that jurisdiction.
|
|
2
|
Proceedings within the Federal Court’s jurisdiction under
section 476A of this Act, including proceedings arising from a remittal
under section 44 of the Judiciary Act 1903.
|
the person seeking the remedy
to be granted in exercise of that jurisdiction.
|
|
3
|
Proceedings within the Federal Court’s appellate
jurisdiction arising from proceedings (the original proceedings)
mentioned in item 1 or 2.
|
the person who was the
applicant for the original proceedings.
|
|
4
|
(a) proceedings by way of a
referral of a question of law arising before the Administrative Appeals
Tribunal;
(b) proceedings by way of an
appeal in relation to proceedings mentioned in paragraph (a).
|
the person who applied to the
Administrative Appeals Tribunal for a review of the decision concerned.
|
Definitions
(15) In this
section:
authorised migration officer has the same
meaning as in section 503A.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
gazetted agency has the same meaning as in
section 503A.
proceeding means a proceeding in a court,
whether between parties or not, and includes an incidental proceeding in the
course of, or in connection with, a proceeding, and also includes an appeal.
Royal Commission means a Royal Commission
(however described) under a law of the Commonwealth, a State or a Territory.
503C
Protection of confidential information disclosed to the Federal Court or the
Federal Magistrates Court—interim non‑disclosure orders
Notice of intention to apply for a permanent non‑disclosure
order
(1) At least 7 days before making an
application for an order under subsection 503B(1) in relation to particular
information, the Minister must give the Federal Court or the Federal
Magistrates Court written notice of the Minister’s intention to make the
application.
(2) A notice under subsection (1) need
not identify any of the attributes of the information.
Interim non‑disclosure order
(3) If:
(a) a notice is given under subsection (1);
and
(b) the notice relates to the
Minister’s intention to make an application for an order under subsection
503B(1) in relation to particular information;
the Federal Court or the Federal Magistrates Court may, on
application by the Minister, make such orders as the Federal Court or the
Federal Magistrates Court considers appropriate for the purpose of ensuring
that, in the event that the subsection 503B(1) application is made and the
information is disclosed to the Federal Court or the Federal Magistrates Court in
accordance with subsection 503B(6), the information is not divulged or
communicated in circumstances that might, to any extent, undermine, prejudice
or pre‑empt:
(c) the Federal Court’s or the Federal
Magistrates Court’s consideration of the subsection 503B(1) application; or
(d) the Minister’s consideration of
whether to make a declaration under subsection 503A(3) authorising the
disclosure of the information to the Federal Court or the Federal Magistrates
Court.
(4) The Federal Court’s or the Federal Magistrates
Court’s orders under subsection (3) include:
(a) an order that some or all of the
members of the public are to be excluded during the whole or a part of the
hearing of the subsection 503B(1) application; or
(b) an order that no report of the whole
of, or a specified part of, or relating to, the subsection 503B(1) application
is to be published; or
(c) an order for ensuring that no
person, without the consent of the Federal Court or the Federal Magistrates
Court, has access to a file or a record of the Federal Court or the Federal
Magistrates Court that contains the information.
(5) Subsection (4) does not limit subsection (3).
(6) The powers of the Federal Court under
this section are to be exercised by a single Judge, and the powers of the Federal
Magistrates Court under this section are to be exercised by a single Federal
Magistrate.
Variation or revocation of non‑disclosure order
(7) The Federal Court or the Federal
Magistrates Court may, by order, vary or revoke an order made by it under subsection (3)
if both:
(a) the Minister; and
(b) the applicant in relation to the
substantive proceedings concerned;
consent to the variation or revocation.
Offence
(8) A person is guilty of an offence if:
(a) an order is in force under subsection (3);
and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes
the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(9) This section has effect despite anything
in:
(a) any other provision of this Act;
or
(b) any other law of the Commonwealth.
Definition
(10) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
503D
Details of gazetted agency to be treated as protected information
(1) If section 503A or 503B applies to
information communicated by a gazetted agency to an authorised migration
officer so that the information cannot be divulged or communicated except as
provided for in sections 503A, 503B and 503C, then sections 503A,
503B and 503C apply to similarly protect the agency’s details from being
divulged or communicated as if the details were the information communicated by
the agency.
(2) A reference in subsection (1) to agency’s
details is a reference to any information in relation to the gazetted
agency including the agency’s name and the conditions on which the
communication of information by the agency occurred.
(3) In this section:
gazetted agency has the same meaning as in
section 503A.
504
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters which by
this Act are required or permitted to be prescribed or which are necessary or
convenient to be prescribed for carrying out or giving effect to this Act and,
without limiting the generality of the foregoing, may make regulations:
(a) making provision for and in
relation to:
(i) the charging and
recovery of fees in respect of any matter under this Act or the regulations,
including the fees payable in connection with the review of decisions made
under this Act or the regulations, whether or not such review is provided for
by or under this Act; or
(ii) the charging and
recovery of fees in respect of English language tests conducted by or on behalf
of the Department;
(iii) the way, including the
currency, in which fees are to be paid; or
(iv) the
persons who may be paid fees on behalf of the Commonwealth;
(b) making provision for the
remission, refund or waiver of fees of a kind referred to in paragraph (a)
or for exempting persons from the payment of such fees;
(c) making provision for or in
relation to the furnishing or obtaining of information with respect to:
(i) persons on board a
vessel arriving at a port in Australia in the course of, or at the conclusion
of, a voyage or flight that commenced at, or during which the vessel called at,
a place outside Australia; and
(ii) persons on board a
vessel leaving a port in Australia and bound for, or calling at, a place
outside Australia; and
(iii) persons on board an
aircraft arriving at or departing from an airport in Australia, being an
aircraft operated by an international air carrier;
(d) making
provision for and in relation to the use that may be made by persons or bodies
other than officers of the Department of information collected pursuant to regulations
made under paragraph (c);
(e) making provision for and in
relation to:
(i) the giving of
documents to;
(ii) the lodging of
documents with; or
(iii) the service of
documents on;
the Minister, the Secretary or
any other person or body, for the purposes of this Act;
(f) prescribing the practice and
procedure in relation to proceedings before a Commissioner or a prescribed
authority under this Act, including the summoning of witnesses, the production
of documents, the taking of evidence on oath or affirmation, the administering
of oaths or affirmations and the payment of expenses of witnesses;
(g) requiring assurances of support to
be given, in such circumstances as are prescribed or as the Minister thinks
fit, in relation to persons seeking to enter, or remain in, Australia and
providing for the enforcement of assurances of support and the imposition on
persons who give assurances of support of liabilities in respect of the
maintenance of, and other expenditure in connexion with, the persons in respect
of whom the assurances of support are given;
(h) making provision for the
remission, refund or waiver of charges under the Migration (Health Services)
Charge Act 1991;
(i) enabling a person who is alleged
to have contravened section 137 to pay to the Commonwealth, as an
alternative to prosecution, a prescribed penalty, not exceeding $1,000;
(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
(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 not
exceeding a fine of $1,000 or imprisonment for 6 months 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 Legislative
Instruments 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 taking effect of the regulations.
(3) The regulations that may be made under paragraph (1)(e)
include, but are not limited to, regulations providing that a document given
to, or served on, a person in a specified way shall be taken for all purposes
of this Act and the regulations to have been received by the person at a
specified or ascertainable time.
(3A) The Evidence Act 1995 does not
affect the operation of regulations made for the purposes of paragraph (1)(e).
(4) Regulations in respect of a matter
referred to in paragraph (1)(g) may apply in relation to maintenance
guarantees given before the commencement of this Part in accordance with the
regulations that were in force under any of the Acts repealed by this Act.
(5) An assurance of support given, after the
commencement of this subsection, in accordance with regulations under paragraph (1)(g)
continues to have effect, and may be enforced, in accordance with such
regulations in spite of any change in circumstances whatsoever.
(5A) The following have effect only in relation
to assurances of support that were given before 1 July 2004 and are not
assurances of support in relation to which Chapter 2C of the Social
Security Act 1991 applies or applied:
(a) subsection (5) of this
section;
(b) regulations made under paragraph (1)(g)
(whether before, on or after the commencement of this subsection) providing
for:
(i) the enforcement of
assurances of support; or
(ii) the
imposition on persons who give assurances of support of liabilities in respect
of the maintenance of, and other expenditure in connection with, the persons in
respect of whom the assurances of support are given.
(6) In this section:
international air carrier means an air
transport enterprise that operates an air service between Australia and a place
outside Australia.
505
Regulations about visa criteria
To avoid
doubt, regulations for the purpose of prescribing a criterion for visas of a
class may provide that the Minister, when required to decide whether an
applicant for a visa of the class satisfies the criterion:
(a) is to get a specified person or
organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a
specified matter; or
(ii) make an assessment of
a specified matter; or
(iii) make a finding about a
specified matter; or
(iv) make a decision about a
specified matter; and
(b) is:
(i) to have regard to that
opinion, assessment, finding or decision in; or
(ii) to take that opinion,
assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant
satisfies the criterion.
506
Regulations about passenger cards
(1) Regulations under paragraph 504(1)(c) may
provide for the giving of different information about different classes of
people.
(2) The regulations are to provide for the
giving of information, in the form of answers to questions on a form, to be
known as a passenger card, by non‑citizens travelling to Australia, other
than non‑citizens exempted by the regulations.
(3) The questions for a non‑citizen
required by subsection (2) may include, but are not limited to, questions
about any or all of the following:
(a) the non‑citizen’s health;
(b) any criminal convictions in Australia
or a foreign country of the non‑citizen;
(c) the purpose of the new arrival’s
going to Australia;
(d) any unpaid debts to the
Commonwealth of the non‑citizen;
(e) any removal or deportation from,
or refusal of admission into, Australia or a foreign country of the non‑citizen.
507
Marital status
(1) The Sex Discrimination Act 1984,
to the extent that it applies to the status or condition of being married or
being the de facto spouse 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 spouse 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 status of persons making or
administering regulations covered by subsection (1).