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
(1) 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) the amount applicable to the person under subsection (2) for the cost of keeping and maintaining the person while the person is in immigration detention; and
(d) the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and
(e) the cost of transporting the person, and a person holding the person, between places of immigration detention; and
(f) if the person is returned to the vessel or another vessel—the cost of transporting the person, and a person holding the person, from the place of immigration detention to the vessel or that other vessel; and
(g) if the person is, or is to be, removed from Australia at the expense of the Commonwealth—the cost of that removal (including the cost of transporting a person holding the person).
(2) The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.
(3) An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.
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.
occupier:
(a) in relation to premises comprising a vehicle or vessel—means the person apparently in charge of the vehicle or vessel; and
(b) in any case—includes a person who apparently represents the occupier.
premises means:
(a) an area of land or any other place, whether or not it is enclosed or built on; or
(b) a building or other structure; or
(c) a vehicle or vessel;
and includes a part of any such premises.
production notice means a notice given under section 268BA.
tribunal member means a member of the Administrative Appeals Tribunal.
visa monitoring purpose means a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.
268AB Division binds the Crown
(1) This Division binds the Crown in each of its capacities.
(2) However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.
268AD Powers conferred on magistrates in their personal capacity
(1) A power conferred on a magistrate by section 268BQ, 268CE, 268CU or 268CZD is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power mentioned in subsection (1) has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
Subdivision B—Notices requiring information and documents
268BA Production notices
(1) This section applies if the Secretary 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 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 a request under section 268CJ or a requirement under section 268CK 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 a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK, 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, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:
(a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or
(b) in accordance with a form of security approved by the Minister.
(1A) The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:
(a) the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and
(b) the officer has indicated those conditions to the applicant.
(2) A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.
(3) Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.
(4) If it appears to the court that a non‑compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:
(a) an extension of time or other concession;
(b) any consent to, or acquiescence in, a previous non‑compliance with a condition; or
(c) any failure to bring suit against the subscribers upon the occurrence of a previous non‑compliance with the condition.
270 Reports of absences of crews of vessels
(1) Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, 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).
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 to help the delegate exercise the power or perform the function.
321 Disclosure of personal information to the Migration Agents Registration Authority
Overview
(1) This section authorises certain disclosures of personal information for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority.
Disclosure by the Department to the Authority
(2) The Department may make a disclosure to the Migration Agents Registration Authority.
Disclosure by the Minister
(3) If the Minister appoints the Institute under section 315, the Minister may make a disclosure to the Institute or an officer or employee of the Institute.
Note: Section 315 lets the Minister appoint the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.
Preliminary disclosure to the Institute
(4) The Department or the Minister may make a disclosure to the Institute or an officer or employee of the Institute at a time when the Minister has made an instrument appointing the Institute under section 315 but the instrument has not taken effect.
Section not limited to information obtained after commencement
(5) The Department or the Minister may disclose information whether it was obtained before or after the commencement of this section.
321A Disclosure of personal information by the Migration Agents Registration Authority
(1) The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient):
(a) the Secretary or an authorised officer;
(b) a review authority.
(2) However, the Authority may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning given by section 306B.
322 Annual report
(1) If an appointment of the Institute under section 315 is in force at the end of a financial year, the Institute must give a report on the administration of this Part during the financial year to the Minister for presentation to the Parliament.
Note: Section 34C of the Acts Interpretation Act 1901 explains when the Institute must give the report to the Minister, and when the Minister must cause the report to be tabled in each House of the Parliament.
(2) If an appointment of the Institute under section 315 is not in force at the end of the financial year, the Minister must cause to be tabled in each House of the Parliament a report on the administration of this Part during the financial year, before the end of the 15th sitting day of that House after the 31 December immediately following the financial year.
Division 6A—Registration application fees and registration status charges
332A Collection of registration status charge
When charge due and payable
(1) Registration status charge is due and payable at the time worked out in accordance with a determination made, by legislative instrument, by the Migration Agents Registration Authority.
Recovery of charge
(3) Registration status charge that has become due for payment may be recovered by the Migration Agents Registration Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.
332B Payments to Migration Institute of Australia Limited
(1) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration application fees collected while an instrument under section 315 appointing the Institute is in force.
(1A) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration status charges collected (including amounts recovered under section 332A) while an instrument under section 315 appointing the Institute is in force.
(2) The Consolidated Revenue Fund is appropriated for the purposes of this section.
Division 7—Other things
332C Removing disciplinary details—registered migration agents
(1) The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:
(a) any statement relating to the cancellation or suspension of a registered migration agent’s registration;
(b) any statement about the cautioning of such an agent.
Time for removal
(2) The Authority must remove the details within the period worked out in accordance with the regulations.
(3) The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.
332D Removing disciplinary details—former registered migration agents
(1) The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.
(2) The Authority must remove the statement within the period worked out in accordance with the regulations.
332E Protection from civil proceedings
Complaints about registered migration agents
(1) No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;
(b) the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.
Complaints about persons who are not registered migration agents
(2) No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;
(b) the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;
(c) the investigation of such a complaint.
Institute etc.
(3) The Institute, or an officer or employee of the Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:
(a) the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;
(b) the exercise or purported exercise of any power conferred on the Authority under this Part.
Commonwealth etc.
(4) None of the following:
(a) the Commonwealth;
(b) the Minister;
(c) an officer;
(d) any other person;
is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:
(e) the performance or purported performance of any function conferred on the Minister under this Part;
(f) the exercise or purported exercise of any power conferred on the Minister under this Part.
332F Disclosure of personal information by the Secretary
(1) The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.
(2) However, the Secretary may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).
(4) In this section:
inactive migration agent has the meaning given by section 306B.
332G Disclosure of personal information by a review authority
Discretionary disclosure
(1) A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.
(2) However, a review authority may do so only in the prescribed circumstances.
(3) The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).
Mandatory disclosure
(4) If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.
Definitions
(5) In this section:
inactive migration agent has the meaning given by section 306B.
review application means an application for review by a review authority of a decision to refuse to grant a person a visa.
332H Giving of notices under this Part
(1) If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):
(a) the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and
(b) the time at which the recipient is taken to have been given the notice is the time set out in the table.
Giving of notices under this Part |
Item | Methods of giving notices | Timing rule |
1 | Handing the notice to the recipient | When it is handed to the recipient |
2 | Handing the notice to another person who: (a) is at the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age | When it is handed to the other person |
3 | Dating the notice, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the notice; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Authority by the recipient for the purposes of receiving notices; or (ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices | (a) if the notice was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the notice; or (b) in any other case—21 days after the date of the notice |
4 | Transmitting the notice by: (a) fax; or (b) 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 referred to in paragraph (a) of the definition of identifying information in this section, includes provide unauthorised access to the personal identifier.
Note: Section 336D deals with authorised access to identifying information.
identifying information means the following:
(a) any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);
(b) any meaningful identifier derived from any such personal identifier;
(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d) any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
permitted disclosure has the meaning given by subsections 336E(2) and (3).
unauthorised impairment has the meaning given by section 336J.
unauthorised modification has the meaning given by section 336J.
336B Application
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.
Division 2—Accessing identifying information
336C Accessing identifying information
(1) A person commits an offence if:
(a) the person accesses identifying information; and
(b) the person is not authorised under section 336D to access the identifying information for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(1A) This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) This section does not apply if the access is through a disclosure that is a permitted disclosure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
336D Authorising access to identifying information
(1) The Secretary 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; and
(f) the information is only disclosed to the extent necessary in order to obtain that help.
Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
(2) Nothing in subsection (1) prevents an officer from disclosing the personal identifier to more than one individual at the same time, as long as the requirements of subsection (1) are met in relation to each one of those individuals.
336FB Disclosure of other relevant information to selected individuals
(1) An officer may disclose, to an individual, personal information about a person (the subject) if:
(a) the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and
(b) the personal information is disclosed together with the personal identifier; and
(c) paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to the personal information as well as the personal identifier.
(2) This section does not apply to personal information that is identifying information.
(3) Nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to each one of those individuals.
336FC Disclosure of certain personal identifiers to the general public
(1) For the purposes of paragraph 336E(2)(k), this section authorises the disclosure of identifying information that relates to a person (the subject) who is not a minor, if:
(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and
(b) the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the subject, in connection with the administration of this Act; and
(c) the Secretary 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 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 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.
Deputy Principal Member means the Deputy Principal Member of the Tribunal.
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, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non‑citizen a visa is 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, de facto partner, child, brother or sister of the non‑citizen; and
(c) particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A) A decision to refuse to grant a non‑citizen a permanent visa is 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.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).
(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 following members may give a written direction about who is to constitute the Tribunal for the purpose of a particular review:
(a) the Principal Member;
(b) the Deputy Principal Member acting in accordance with guidelines under subsection (3);
(c) a Senior Member acting in accordance with guidelines under subsection (3).
(3) The Principal Member may give written guidelines to the Deputy Principal Member and the Senior Members for the giving of directions 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.
(2A) If the Tribunal as constituted for the purpose of the review:
(a) does not include the Principal Member; and
(b) includes the Deputy Principal Member;
the Deputy Principal Member is to preside at the review.
(3) If the Tribunal as constituted for the purpose of the review:
(a) does not include the Principal Member or the Deputy Principal Member; and
(b) includes one, and only one, Senior Member;
the Senior Member shall preside at the review.
(4) If none of subsections (2), (2A) and (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 information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
359AA Information and invitation given orally by Tribunal while applicant appearing
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 in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
360A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
361 Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4).
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.
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
(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 Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
368D Notifying parties when Tribunal gives an oral decision
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.
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 etc.
379AA Giving documents by Tribunal where no requirement to do so by section 379A or 379B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 379A or 379B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA.
Note 2: Under section 379G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.
(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(2A) However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in an or for organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of a member, 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; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
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:
(d) 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; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
Documents given to a carer
(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
379B Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to the Secretary; and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, 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.
Document not given effectively
(7) If:
(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
379D When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 379B (including in a case covered by section 379AA).
Giving by hand
(2) If the Tribunal gives a document to the Secretary by the method in subsection 379B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the Secretary by the method in subsection 379B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, 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.
379EA Giving documents by Tribunal—combined applications
If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.
Note 1: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
Note 2: Section 379G deals with giving documents to a person’s authorised recipient.
379F Giving documents etc. to the Tribunal
(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
(aa) if a person is appointed as a Deputy Principal Member—a Deputy 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) Subject to subsection (1A), the members of the Tribunal are to be appointed by the Governor‑General.
(1A) The Governor‑General may appoint a person as the Deputy Principal Member.
(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:
(a) the office of Principal Member; or
(b) the office of Deputy Principal Member; or
(c) an office of Senior Member.
405 Delegation
The Principal Member may, by writing, signed by him or her, delegate to the Deputy Principal Member or 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 information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
424AA Information and invitation given orally by Tribunal while applicant appearing
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 in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
424C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 424 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
425A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
426 Applicant may request 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.
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
(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 Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
430D Notifying parties when Tribunal gives an oral decision
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.
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.
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
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 etc.
441AA Giving documents by Tribunal where no requirement to do so by section 441A or 441B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 441A or 441B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 441EA.
Note 2: Under section 441G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.
(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member, the Registrar or an officer of the Tribunal reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(2A) However, subsection (2) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
441A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who a member, the Registrar or an officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.
(1B) However, subsection (1A) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of a member, 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; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.
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:
(d) 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; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar or other officer.
Documents given to a carer
(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
441B Methods by which Tribunal gives documents to the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to the Secretary; and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, 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.
Document not given effectively
(7) If:
(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
441D When the Secretary is taken to have received a document from the Tribunal
(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 441B (including in a case covered by section 441AA).
Giving by hand
(2) If the Tribunal gives a document to the Secretary by the method in subsection 441B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.
Dispatch by post or by other means
(3) If the Tribunal gives a document to the Secretary by the method in subsection 441B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, 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.
441EA Giving documents by Tribunal—combined applications
If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.
Note 1: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
Note 2: Section 441G deals with giving documents to a person’s authorised recipient.
441F Giving documents etc. to the Tribunal
(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) if a person is appointed as a Deputy Principal Member—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) Subject to subsection (1A), the members of the Tribunal are to be appointed by the Governor‑General.
(1A) The Governor‑General may appoint a person as the Deputy Principal Member.
(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 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.
(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or
(b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(4) Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(5) In this section:
judgment has the same meaning as in the Federal Court of Australia Act 1976.
476B Remittal by the High Court
(1) Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal 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 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or
(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
477A Time limits on applications to the Federal Court
(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
478 Persons who may make application
An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary, 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 35 days of the date of the migration decision.
(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
(a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
486AA Intervention by Attorney‑General
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).
(2) If the Attorney‑General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit.
(3) If the Attorney‑General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
486AB Operation etc. of decision
The making of an application referred to in section 486A does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
486B Multiple parties in migration litigation
Application of section
(1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal 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:
migration litigation means a court proceeding in relation to a migration decision.
Part 8C—Reports on persons in detention for more than 2 years
486L What is the detention reporting start time for a person?
For the purposes of this Part, the detention reporting start time for a person is whichever of the following times (if any) applies to the person:
(a) if the person is in immigration detention on the commencement of this Part and has been in immigration detention before then for a period of at least 2 years, or for periods that total at least 2 years—the time when this Part commences; or
(b) otherwise—the time after the commencement of this Part when the person has been in immigration detention for a period of 2 years, or for periods that total at least 2 years (some of which detention may have occurred before the commencement of this Part).
486M What is a detention reporting time for a person?
For the purposes of this Part, a detention reporting time for a person is:
(a) the detention reporting start time for the person; or
(b) the end of each successive period of 6 months after that time at the end of which the person is in immigration detention.
486N Secretary’s obligation to report to Commonwealth Ombudsman
(1) The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given:
(a) if the detention reporting time is the time when this Part commences—as soon as practicable, and in any event within 6 months, after that commencement; or
(b) otherwise—within 21 days after the detention reporting time.
(2) Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection.
(3) The Secretary must give the report to the Commonwealth Ombudsman even if the person has, since the detention reporting time, ceased to be in immigration detention.
486O Commonwealth Ombudsman to give Minister assessment of detention arrangements
Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements
(1) As soon as practicable after the Commonwealth Ombudsman receives a report under section 486N, he or she is to give the Minister an assessment of the appropriateness of the arrangements for the person’s detention.
Assessment may include recommendations
(2) The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate.
(3) Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following:
(a) a recommendation for the continued detention of a person;
(b) a recommendation that another form of detention would be more appropriate for a person (for example, residing at a place in accordance with a residence determination);
(c) a recommendation that a person be released into the community on a visa;
(d) general recommendations relating to the Department’s handling of its detainee caseload.
(4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.
Assessment to include statement for tabling in Parliament
(5) The assessment must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the assessment as the Commonwealth Ombudsman considers can be tabled without adversely affecting the privacy of any person.
Assessment to be given even if person no longer in detention
(6) The Commonwealth Ombudsman must give the assessment to the Minister even if the person has, since the detention reporting time, ceased to be in immigration detention.
486P Minister to table statement from Commonwealth Ombudsman
The Minister must cause the statement included in an assessment as mentioned in subsection 486O(5) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the assessment.
486Q Application of Ombudsman Act 1976
(1) Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s preparation of an assessment under section 486O (including his or her consideration of the report under section 486N to which the assessment relates), as if the preparation of the assessment were an investigation under that Act.
(2) The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.
Part 8D—Civil penalties
Division 1—Obtaining an order for a civil penalty
486R Person may be ordered to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply to the Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.
Court may order wrongdoer to pay pecuniary penalty
(2) If the court is satisfied that the wrongdoer has contravened a civil penalty provision, the court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the court determines is appropriate (but not more than the relevant amount specified for the provision).
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court in proceedings under this Act to have engaged in the same or similar conduct.
(4) For the purpose of paragraph (3)(d), in relation to proceedings for a contravention of a civil penalty provision in Division 3A of Part 2, a person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the proceedings relate. However, this subsection does not limit the circumstances in which a person may be found to have engaged in similar conduct.
Civil evidence and procedure rules apply
(5) The court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for an order under this section.
Note: The standard of proof in civil proceedings is the balance of probabilities: see section 140 of the Evidence Act 1995.
Court may order wrongdoer to pay amount prescribed by regulations
(6) If, when determining an application for an order under this section, it appears to the court that:
(a) an amount of a kind prescribed in the regulations is required to be paid to:
(i) the Commonwealth, or a State or Territory; or
(ii) another person; and
(b) the amount remains unpaid after the time for payment; and
(c) proceedings to recover the amount have not been brought under section 140S;
the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).
Note: Section 140S allows a person to bring proceedings to recover an amount owed if the court does not make an order under this subsection.
(7) If the court makes an order under subsection (6):
(a) an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for an order under this section were proceedings under section 140S; and
(b) section 140SB applies as if the amount ordered under subsection (6) of this section were a judgment debt of the eligible court made under section 140S.
486S Persons involved in contravening civil penalty provision
(1) A person must not:
(a) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(c) conspire to contravene a civil penalty provision.
(2) This Act applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.
486T Recovery of pecuniary penalty
If the Federal Court or the Federal Magistrates Court orders a person to pay a pecuniary penalty, the Commonwealth may enforce the order as if it were a judgment of the relevant court.
486U Gathering information for application for pecuniary penalty
(1) This section applies if it appears to the Secretary that a person (the wrongdoer) may have contravened a civil penalty provision.
(2) If the Secretary, on reasonable grounds, suspects that a person other than the wrongdoer can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Secretary may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.
(3) Subsection (2) does not apply in relation to a lawyer who is acting, or has acted, for the wrongdoer.
(4) If a person fails to give assistance as required under subsection (2), a court may, on the application of the Secretary, order the person to comply with the requirement as specified in the order.
(5) If a person fails to give assistance as required under subsection (2), the person commits an offence against this subsection.
Penalty: 30 penalty units.
Division 2—Civil penalty proceedings and criminal proceedings
486V Civil proceedings after criminal proceedings
The Federal Court or the Federal Magistrates Court must not order a person to pay a pecuniary penalty for contravening a civil penalty provision if the person has been convicted of an offence constituted by conduct substantially the same as the conduct constituting the contravention.
486W Criminal proceedings during civil proceedings
(1) Proceedings for an order for a person to pay a pecuniary penalty for contravening a civil penalty provision are stayed if:
(a) criminal proceedings are started, or have already been started, against the person for an offence; and
(b) the offence is constituted by conduct substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed when the criminal proceedings (including any appeals) for the offence end with the conviction of the person of the offence.
486X Criminal proceedings after civil proceedings
Criminal proceedings may not be started against a person for conduct substantially the same as conduct contravening a civil penalty provision if the person has been ordered to pay a pecuniary penalty under this Act for the contravention.
486Y Evidence given in proceedings for civil penalty not admissible in criminal proceedings
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual for an offence if:
(a) the individual previously gave the evidence or produced the documents in proceedings against the individual for an order for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
486Z Civil double jeopardy
If a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct.
Division 3—Miscellaneous
486ZA Multiple contraventions of civil penalty provisions
(1) Proceedings against a person for any number of orders to pay pecuniary penalties for contraventions of a civil penalty provision that are founded on the same facts or form, or are part of, a series of contraventions of the same or a similar character, may be joined.
(2) The Federal Court or the Federal Magistrates Court may make a single order to pay a pecuniary penalty for all the contraventions described in subsection (1), but the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
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.
(2) To avoid doubt, this section does not:
(a) require anyone to disclose information; or
(b) affect a requirement of, or under, a provision of this Act or the regulations for a person to disclose information (whether by answering a question, by providing a document or by other means).
(3) In this section:
officer includes a person who is a clearance officer within the meaning of section 165.
organisation has the same meaning as in the Privacy Act 1988.
travel agent includes an organisation that is involved in arranging or facilitating travel.
489 Notified data bases
The Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section.
490 Identification card to be deemed to continue to be in a form approved by the Minister
Where the Minister revokes the approval of a form of identification card in relation to members of the crews of vessels, an identification card in accordance with that form signed by the master of a vessel not later than 3 months after the date of that revocation shall, notwithstanding that revocation, be deemed, for the purposes of this Act, to continue to be an identification card in accordance with a form approved by the Minister.
492 Commencement of prosecutions
(1) Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.
(2) A prosecution of a person for an offence against section 234, 236 or 243 that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
(3) A prosecution for an offence:
(a) against section 232A, 233 or 233A of this Act as in force before the commencement of this subsection; and
(b) alleged to have been committed after the commencement of the Migration Legislation Amendment Act (No. 1) 1999;
may be instituted at any time.
(4) A prosecution for an offence against section 233A, 233B, 233C, 233D, 233E or 234A that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
493 Conduct of directors, 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
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.
(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
Transmission by fax, 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:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
494C When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, 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.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
494D Authorised recipient
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to 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.
(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
495 Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
495A Minister may arrange for use of computer programs to make decisions etc.
(1) The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:
(a) make a decision; or
(b) exercise any power, or comply with any obligation; or
(c) do anything else related to making a decision, exercising a power, or complying with an obligation.
(2) The Minister is taken to have:
(a) made a decision; or
(b) exercised a power, or complied with an obligation; or
(c) done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;
that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).
(3) For the purposes of this section, the following provisions are the designated migration law:
(a) Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);
(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 court martial or similar military tribunal.
immediate family member of a person means another person who is a member of the immediate family of the person (within the meaning of the regulations).
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(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 court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
501A Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(4A) Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
Decision not reviewable under Part 5 or 7
(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)
(1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) A decision under subsection (2) is not reviewable under Part 5 or 7.
(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the Administrative Appeals Tribunal.
Note: For notification of decisions under this section, see section 501G.
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.
501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas
If, under the Migration Reform (Transitional Provisions) Regulations, a person:
(a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or
(b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or
(c) is taken to hold a transitional (permanent) visa;
the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa.
501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision.
(2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.
(3) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(4) The power under subsection (1) may only be exercised by the Minister personally.
(5) If the Minister substitutes a decision under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Administrative Appeals Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(6) A statement made under subsection (5) is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(7) A statement under subsection (5) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(8) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal
(1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:
(a) the person; or
(b) any relative or other dependant of the person.
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
(3) In this section:
application for a protection‑related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
protection‑related bridging visa means a bridging visa granted as a result of an application for a protection‑related bridging visa.
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
(jaa) enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and
(ja) enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and
(k) prescribing penalties 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 the spouse or de facto partner of another person, does not operate in relation to:
(a) regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify:
(i) the nature and incidents of the relationship between a person and another person; or
(ii) the period for which a relationship of a specified kind must have existed between a person and another person;
before the person is taken to be the de facto partner of the other person; or
(b) the performance of any function, the exercise of any power or the fulfilment of any responsibility, in connection with the administration of any such regulation.
(2) To avoid doubt, subsection (1) does not prevent the Sex Discrimination Act 1984 from applying in relation to the marital status of persons making or administering regulations covered by subsection (1).
Table A
Application, saving or transitional provisions
Migration Legislation Amendment Act (No. 1) 1997 (No. 27, 1997)
Schedule 1
Part 2—Application and transitional
29 Application
(1) The amendment made by item 13 of this Schedule applies in relation to applications whether made before, at or after the commencement of this item.
(2) The remaining amendments of the Immigration (Education) Act 1971 and the Migration Act 1958 made by this Schedule apply in relation to applications for visas made at or after the commencement of the Migration (Visa Application) Charge Act 1997.
Note: Under item 30, some applications that are made before the commencement of the Migration (Visa Application) Charge Act 1997 are taken to be made immediately after that time.
30 Transitional
If:
(a) an application for a visa is made before the commencement of the Migration (Visa Application) Charge Act 1997; and
(b) a visa application fee, or part of a visa application fee, payable under the Migration Act 1958 in respect of the application has not been paid at that time;
then, for the purposes of the Immigration (Education) Act 1971, the Migration (Health Services) Charge Act 1991 and sections 45A, 45B and 45C of the Migration Act 1958, the application is taken to have been made immediately after the commencement of the Migration (Visa Application) Charge Act 1997.
Migration Legislation Amendment (Migration Agents) Act 1997 (No. 205, 1997)
Schedule 1
Part 2—Application and transitional provisions
67 Migration Agents Registration Board may disclose personal information
The Migration Agents Registration Board may disclose to the Department personal information (as defined by the Privacy Act 1988) that:
(a) is relevant to the exercise of the Board’s powers or the performance of the Board’s functions; or
(b) may help the Migration Agents Registration Authority exercise its powers or perform its functions under the Migration Act 1958 as amended by this Act.
68 Department may disclose personal information
(1) This item 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 under the Migration Act 1958 as amended by this Act.
(2) The Department may make a disclosure to the Migration Institute of Australia Limited (A.C.N. 003 409 390) (the Institute) or an officer or employee of the Institute at a time before 21 March 1998 if the Minister has made an instrument before that time appointing the Institute under section 315 of that Act.
Note: Section 4 of the Acts Interpretation Act 1901 lets the Minister make such an instrument before 21 March 1998.
(3) For the purposes of subitem (2), it does not matter when the Department obtained the personal information disclosed.
69 Transitional provision for Register of Migration Agents
The Register of Migration Agents continues in force, despite the amendment of section 287 of the Migration Act 1958 by item 31.
Note: This means that a migration agent who was registered immediately before that amendment continues to be a registered agent after that amendment until his or her registration expires or is cancelled or suspended, or he or she is deregistered.
70 Applications for registration made before 21 March 1998
(1) This item makes special provision for an individual’s application to be registered as a registered agent if:
(a) the application was made under section 288 of the Migration Act 1958 before 21 March 1998; and
(b) the applicant had not been registered as a result of the application before that day; and
(c) neither the Secretary nor the Migration Agents Registration Board had made a decision before that day not to register the applicant.
(2) Part 3 of the Migration Act 1958 as amended by this Schedule applies to the application as if the applicant had made the application to the Migration Agents Registration Authority.
(3) That Part applies as if the application were made on the form approved for the purposes of subsection 288(2) of the Migration Act 1958 as in force on and after 21 March 1998.
(4) That Part applies as if any registration application fee on the application had been paid, if:
(a) the applicant had paid levy on the application under the Migration Agents Registration (Application) Levy Act 1992; or
(b) the application was exempt from levy under that Act.
(5) If the Secretary had published notice of the application in the Gazette and a statement under subsection 289(1) of the Migration Act 1958 as in force before 21 March 1998, Part 3 of that Act as in force on and after that day applies as if:
(a) the applicant had given notice of his or her intention to apply for registration under subsection 288(1A) of that Act (as in force on and after 21 March 1998); and
(b) the notice given by the applicant had stated that the time for objections ended 6 weeks after the day the Secretary published notice of the application.
(6) In deciding whether the applicant should be registered, the Migration Agents Registration Authority must consider an objection to registering the applicant, even if it was made to the Secretary before 21 March 1998.
Note: The Migration Agents Registration Authority may also consider any further submission requested by the Migration Agents Registration Board under section 309 of the Migration Act 1958. See item 78.
71 Application of section 291 of the Migration Act 1958
Section 291 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a refusal of an application for registration, whether the refusal occurred before or after the commencement of that item.
72 Application of section 292 of the Migration Act 1958
Section 292 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a cancellation of a migration agent’s registration, whether the cancellation occurred before or after the commencement of that item.
73 Special arrangements for renewal of registration of some migration agents in the voluntary sector
(1) This item makes special provision for a registered agent if:
(a) the agent’s registration is due for renewal under section 300 of the Migration Act 1958 on or after 21 March 1998 but no later than 20 September 1998; and
(b) the agent gives immigration assistance only as an employee of, or a voluntary worker for, a person or organisation that does not charge people receiving the assistance a fee, or require any other reward from them, for the assistance.
(2) Paragraph 302(1)(b) of the Migration Act 1958 has effect in relation to the renewal occurring in 1998 as if that paragraph referred to 6 months instead of 2 weeks.
Note: This gives the agent 6 months (rather than 2 weeks) to pay the renewal fee.
(3) The Migration Agents Registration Authority must deregister the agent by removing his or her name from the Register of Migration Agents if, 6 months after the renewal in 1998 of the agent’s registration, the Authority is satisfied that the agent is not a fit and proper person to give immigration assistance because the agent does not have either:
(a) a qualification prescribed by the regulations for the purposes of paragraph 290(2)(b) of the Migration Act 1958; or
(b) a knowledge of migration procedure that the Authority considers to be sound.
(4) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Migration Agents Registration Authority made under this item.
74 Cancellations, suspensions and cautions continue to have effect
If an agent’s registration was cancelled or suspended, or an agent was cautioned, under section 303 of the Migration Act 1958 before 21 March 1998, the cancellation, suspension or caution is not affected by the amendment of that section by this Schedule.
75 AAT proceedings relating to the Migration Agents Registration Board
(1) This item extends subsection 43(1) of the Administrative Appeals Tribunal Act 1975 for the purposes of an application made at any time to the Administrative Appeals Tribunal (in accordance with that Act) for review of a decision the Migration Agents Registration Board made under Division 3 of Part 3 of the Migration Act 1958 before 21 March 1998.
Note: Subsections 3(2) and 25(7) of the Administrative Appeals Tribunal Act 1975 allow the President of the Administrative Appeals Tribunal to specify a person to take the place of the Migration Agents Registration Board in proceedings before the Tribunal on or after 21 March 1998.
(2) Without limiting subsection 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal may:
(a) exercise the powers and discretions of the Migration Agents Registration Authority for the purpose of varying the Board’s decision or substituting another decision for the Board’s decision; or
(b) remit the matter to the Migration Agents Registration Authority for consideration in accordance with any directions or recommendations of the Tribunal.
76 Continuation of investigations requested by Migration Agents Registration Board
(1) An investigation arranged by the Secretary at the request of the Migration Agents Registration Board may be completed, despite the repeal of section 307 of the Migration Act 1958 by this Act.
(2) The report of the investigation may be given to the Migration Agents Registration Authority, together with any material relevant to the consideration by the Authority of:
(a) a registration application; or
(b) a possible disciplinary action under section 303 of the Migration Act 1958.
(3) A report or material arising out of an investigation requested by the Migration Agents Registration Board of a complaint about a registered agent relating to his or her provision of immigration assistance may be given to the Migration Agents Registration Authority only if the complainant agrees to its being given to the Authority.
77 Information required by Board
If, before 21 March 1998:
(a) the Migration Agents Registration Board requires a registered agent to make a statutory declaration or provide specified documents or records under section 308 of the Migration Act 1958; and
(b) the declaration, documents or records have not been given to the Board;
the declaration, documents or records must be given to the Migration Agents Registration Authority as soon as possible after that day.
78 Submissions to the Board under section 309
The Migration Agents Registration Authority may take into account any submission that the Migration Agents Registration Board invited a person to make under section 309 of the Migration Act 1958, when the Authority is making a decision about exercising its powers or performing its functions.
79 Obligations after renewal of registration
(1) The amendments made by items 40 and 52 do not apply to renewals of registration occurring before 21 March 1998.
(2) A person whose registration was renewed after 20 January 1998 but before 21 March 1998 may satisfy the requirements of subsection 312(2) of the Migration Act 1958 by giving the information described in paragraph 312(1)(b) of that Act to the Migration Agents Registration Authority on or after 21 March 1998 but before the end of 2 months after the renewal.
80 First report under section 322
The report under section 322 relating to the financial year ending at the end of 30 June 1998 is to cover the administration of Part 3 of the Migration Act 1958 only for the period from 21 March 1998 to 30 June 1998 (inclusive).
81 Final report
(1) If an appointment of the Institute under section 315 of the Migration Act 1958 is in force immediately before the day (the sunset day) that Part 3 of that Act ceases to be in force because of section 333 of that Act, the Institute must give to the Minister for presentation to the Parliament a report on the administration of that Part during the period:
(a) starting on the last 1 July before the sunset day; and
(b) ending immediately before the sunset day.
(2) The Institute must give the Minister the report within 42 days after the sunset day.
(3) The Minister must cause the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day he or she receives the report.
(4) If an appointment of the Institute under section 315 of the Migration Act 1958 is not in force immediately before the sunset day, the Minister must cause to be tabled in each House of the Parliament a report on the administration of Part 3 of that Act during the period:
(a) starting on the last 1 July before the sunset day; and
(b) ending immediately before the sunset day.
(5) The Minister must cause the report to be tabled in each House of the Parliament under subitem (4) before the end of the 15th sitting day of that House after the end of the 42nd day after the sunset day.
Schedule 3
18 Collection and application of renewal fees on and after 21 March 1999
(1) Amounts of charge imposed by the Migration Agents Registration Renewal Charge Act 1997 before 21 March 1999 must be paid and can be recovered as if the amendments made by items 8, 15 and 16 had not been made.
(2) The Migration Agents Registration Authority must deregister a registered agent who fails to pay within 2 weeks of the renewal of his or her registration any charge imposed by the Migration Agents Registration Renewal Charge Act 1997 on that renewal, despite the repeal of paragraph 302(1)(b) of the Migration Act 1958 by item 13.
(3) The amendment of section 332A of the Migration Act 1958 by item 16 does not affect any regulations made in reliance on that section before 21 March 1999, so far as they relate to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.
(4) The amendment of section 332B of the Migration Act 1958 by item 17 does not affect the operation of that section so far as it relates to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.
19 Continuation of registration renewed after 21 March 1998 and before 21 March 1999
The repeal of subsection 299(2) of the Migration Act 1958 by item 11 does not affect the continuation of a registration renewed after 21 March 1998 and before 21 March 1999.
20 Continued obligation to provide information after renewal of registration
(1) A registered agent whose registration was renewed after 6 March 1999 must give the Migration Agents Registration Authority the information described in subsection 312(2) of the Migration Act 1958 (as in force at the time of the renewal) within 2 weeks of the renewal, despite the repeal of that subsection by item 14.
(2) The Migration Agents Registration Authority must deregister a registered agent who fails to provide that information within that time, despite the repeal of paragraph 302(1)(c) of the Migration Act 1958 by item 13.
Migration Legislation Amendment Act (No. 1) 1998 (No. 113, 1998)
Schedule 1
40 Internally‑reviewable decisions
(1) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) before the commencement of this Schedule, an application had been properly made under section 339 of that Act for review of a decision; and
(b) the applicant had not been notified of the decision as provided in section 343 of that Act before that commencement;
the application is taken to be an application properly made, on the day of that commencement, under section 347 of that Act as amended by this Act.
(2) If:
(a) before the commencement of this Schedule, an application could have been properly made under section 339 of the Migration Act 1958 for review of a decision; and
(b) the period under paragraph 339(1)(b) of that Act for making the application had not expired before that commencement;
an application may be made under section 347 of that Act as amended by this Act for review of the decision under section 348 of that Act as so amended. However, the period for making the application is to be worked out from the day, before that commencement, on which the decision was notified.
(3) Despite the repeal of Division 2 of Part 5 of the Migration Act 1958 by this Act, the Minister may, after the commencement of this Schedule, exercise his or her power under subsection 345(1) of the Migration Act 1958, in relation to a decision under section 341 of that Act, as if the repeal had not occurred.
(4) If, after the commencement of this Schedule, the Minister exercises his or her power under subsection 345(1) of the Migration Act 1958, section 178 of that Act applies as if the amendment made to that section by item 4 of this Schedule had not been made.
41 IRT‑reviewable decisions
(1) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) before the commencement of this Schedule, an application had been properly made under section 347 of that Act for review of a decision; and
(b) the applicant had not been given a statement relating to the review under section 368 of that Act before that commencement;
the application is taken to be an application properly made, on the day of that commencement, under section 347 of that Act as amended by this Act.
(2) If:
(a) before the commencement of this Schedule, an application could have been properly made under section 347 of the Migration Act 1958 for review of a decision; and
(b) the period under paragraph 347(1)(b) of that Act for making the application had not expired before that commencement;
an application may be made under section 347 of that Act as amended by this Act for review of the decision under section 348 of that Act as so amended. However, the period for making the application is to be worked out from the day, before that commencement, on which the decision was notified.
(3) To avoid doubt, the Minister may, after the commencement of this Schedule, exercise his or her power under subsection 351(1) of the Migration Act 1958 in relation to a decision under section 349 of that Act that was made before that commencement.
(4) Subsection 368(2) of the Migration Act 1958 as in force immediately before the commencement of this item continues to apply in relation to statements prepared under subsection 368(1) of that Act before that commencement.
42 Decisions referred for further consideration after judicial review
(1) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) before the commencement of this Schedule, a decision under section 349 of the Migration Act 1958 has been quashed or set aside by a court; and
(b) the matter to which the decision under that section relates was referred by the court for further consideration; and
(c) no decision on that further consideration was made before that commencement;
the decision under that section is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on the day of that commencement.
(2) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) after the commencement of this Schedule, a decision made before that commencement under section 349 of the Migration Act 1958 is quashed or set aside by a court; and
(b) the matter to which the decision under that section relates was referred by the court for further consideration;
the decision under that section is taken, on and after the day of the referral, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on that day.
43 Decisions that the Minister has agreed to reconsider
(1) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) before the commencement of this Schedule, an application has been made to a court for judicial review of a decision under section 349 of the Migration Act 1958; and
(b) before the judicial review application was determined by the court, and before that commencement, the Minister agreed, in writing, to reconsider the decision; and
(c) no decision on that reconsideration was made before that commencement;
the decision under that section is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on the day of that commencement.
(2) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:
(a) before or after the commencement of this Schedule, an application has been or is made to a court for judicial review of a decision, made before that commencement, under section 349 of the Migration Act 1958; and
(b) before the judicial review application was or is determined by the court, but after that commencement, the Minister agrees, in writing, to reconsider the decision;
the decision under that section is taken, on and after the day of the Minister’s agreement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on that day.
44 Conclusive certificates
For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, a conclusive certificate that:
(a) was issued under subsection 338(3) or 346(4) of that Act before the commencement of this Schedule; and
(b) immediately before that commencement was still in force;
is taken to have been issued, on the day of that commencement, under section 339 of that Act as amended by this Act.
Schedule 2
10 Appointments relating to the Migration Review Tribunal
(1) If, before the commencement of this Schedule, an appointment as provided for by subsection 4(1) of the Acts Interpretation Act 1901 is made under Part 6 of the Migration Act 1958 as amended by this Schedule, the amendments made to that Act by this Schedule apply to the appointment as if those amendments had commenced immediately before the appointment was made.
(2) This item does not affect the operation of Part 5 of the Migration Act 1958.
Schedule 3
20 Existing applications for review
(1) The amendments made by this Schedule apply to an application made under section 412 of the Migration Act 1958 for review of an RRT‑reviewable decision if:
(a) the application was made before the commencement of this Schedule; and
(b) the review was not completed under section 414 of that Act before that commencement.
(2) Subsection 430(2) of the Migration Act 1958 as in force immediately before the commencement of this item continues to apply in relation to statements prepared under subsection 430(1) of that Act before that commencement.
21 Applications for review of existing RRT‑reviewable decisions
The amendments made by this Schedule apply to an application made, on or after the commencement of this Schedule, under section 412 of the Migration Act 1958 for review of an RRT‑reviewable decision made before that commencement.
Schedule 5
2 Application
The amendment made by this Schedule applies to any cancellation of a visa under section 128 of the Migration Act 1958 after the commencement of this Schedule (whether or not the circumstances, acts or omissions to which the cancellation relates occurred after that commencement).
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (No. 114, 1998)
Schedule 1
28 Application—refusal or cancellation of visas on character grounds
(1) The amendment made by item 23, to the extent that it relates to applications for visas, applies to applications that were made before, on or after the commencement of that item.
(2) The amendment made by item 23, to the extent that it relates to visas granted to a person, applies to visas granted before, on or after the commencement of that item.
29 Transitional—conclusive certificates issued under section 339 of the Migration Act 1958
(1) This item applies to a certificate issued by the Minister that was in force under section 339 of the Migration Act 1958 immediately before the commencement of this item.
(2) The certificate has effect after the commencement of this item as if it had been issued under section 339 of the Migration Act 1958 as amended by this Act.
30 Transitional—conclusive certificates issued under subsection 411(3) of the Migration Act 1958
(1) This item applies to a certificate issued by the Minister that was in force under subsection 411(3) of the Migration Act 1958 immediately before the commencement of this item.
(2) The certificate has effect after the commencement of this item as if it had been issued under subsection 411(3) of the Migration Act 1958 as amended by this Act.
31 Transitional—Ministerial directions
(1) This item applies to a direction given by the Minister that was in force under section 499 of the Migration Act 1958 immediately before the commencement of this item.
(2) The direction has effect after the commencement of this item as if it had been given under section 499 of the Migration Act 1958 as amended by this Act.
32 Transitional—review of adverse pre‑commencement decisions under the Migration Act 1958
(1) Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if:
(a) those amendments had not been made; and
(b) section 501 of the Migration Act 1958 had not been repealed by this Act.
(2) The repeal and substitution of subsection 500(4) of the Migration Act 1958 made by this Act does not imply that an application may be made, or could have been made, to the Administrative Appeals Tribunal for review of a decision to which a certificate under section 502 of the Migration Act 1958 applies.
33 Transitional—setting aside and substitution of non‑adverse pre‑commencement decisions under section 501 of the Migration Act 1958
(1) This item applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes, or has at any time made, a decision (the original decision):
(c) not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to cancel a visa that has been granted to a person.
(2) Section 501A of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501A(1) of that Act.
34 Transitional—setting aside and substitution of adverse pre‑commencement decisions under section 501 of the Migration Act 1958
(1) This item applies if a delegate of the Minister has at any time made a decision (the original decision) under section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item):
(a) to refuse to grant a visa to a person; or
(b) to cancel a visa that has been granted to a person.
(2) Section 501B of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501B(1) of that Act.
Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (No. 34, 1999)
4 Applications for certain visas made before the commencement of this Act
(1) If during the period beginning on 6 April 1999 and ending immediately before the commencement of this section:
(a) a non‑citizen is in Australia; and
(b) the non‑citizen:
(i) holds a temporary visa that falls within Class UJ under the regulations; or
(ii) has not left Australia since ceasing to hold such a visa; and
(c) the non‑citizen makes an application for a visa; and
(d) the non‑citizen is not granted a substantive visa as a result of the application;
then the application ceases to be a valid application on the commencement of this section, despite any provision of the Migration Act 1958 or any other law.
(2) To avoid doubt:
(a) subsection (1) applies even if the application, or a decision in relation to the application, is the subject of a review by, or an appeal or application to, a review officer, body, tribunal or court; and
(b) no visa may be granted to the non‑citizen as a direct, or indirect, result of the application.
5 Visas taken to be temporary safe haven visas
A visa that falls within Class UJ under the regulations is taken to be a temporary safe haven visa on the commencement of this section.
Migration Legislation Amendment Act (No. 1) 1999 (No. 89, 1999)
Schedule 3
1 Effect of certain Schedule 1 amendments
The amendments made by items 1, 2, 4 and 10 of Schedule 1 are not intended to alter the effect of any orders made by a court before 3 December 1998.
Border Protection Legislation Amendment Act 1999 (No. 160, 1999)
Schedule 1
13 Application
The amendments made by this Part apply only in relation to contraventions after the commencement of this Part.
63 Application
(1) The amendments made by items 34, 35, 36, 37, 40, 48 and 50 do not apply in relation to travel to Australia that occurred before the commencement of those items.
(2) The amendments made by items 41, 51, 57 and 58 do not apply in relation to the entry of a person into Australia that occurred before the commencement of those items.
70 Application of amendments
The amendments made by this Part apply to applications, or purported applications, for a visa made after the commencement of this item.
Migration Legislation Amendment (Migration Agents) Act 1999 (No. 175, 1999)
Schedule 2
7 Application of amendments—section 305 of the Migration Act 1958
Despite the amendments of section 305 of the Migration Act 1958 made by this Schedule, that section continues to apply after the commencement of this item, in relation to a cancellation or suspension decision made before the commencement of this item, as if those amendments had not been made.
8 Application of amendments—Division 3A of Part 3 of the Migration Act 1958
Division 3A of Part 3 of the Migration Act 1958 applies in relation to immigration assistance given, or anticipated to be given, whether before, at or after the commencement of this item.
Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)
Schedule 3
20 Definition
In this Part:
commencing time means the time when this Part commences.
27 Amendment of the Migration Act 1958
(1) The Migration Act 1958 as in force at and after the commencing time applies to a former 147 certificate in the same way as it does to a later 147 certificate.
(2) In this item:
former 147 certificate means a certificate given under section 147 of the Migration Act 1958 at any time before the commencing time by a member of the Australian Federal Police of a rank not lower than Superintendent.
later 147 certificate means a certificate given under section 147 of the Migration Act 1958 at or after the commencing time by a commissioned police officer (within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).
34 Warrants or writs etc. may continue to be executed
If, immediately before the commencing time, any warrant, writ, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory could be executed by a person who was at that time a member, staff member or special member of the Australian Federal Police, the authority continues to be able to be executed at and after the commencing time by the person in his or her capacity as:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP employee; or
(d) a special member of the Australian Federal Police;
(all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).
Note: A person who is a member or staff member of the Australian Federal Police immediately before the commencing time is taken to be engaged as an AFP employee. Similarly, a person who is a special member of the Australian Federal Police immediately before the commencing time is taken to be appointed as a special member. See item 2 of this Schedule.
35 Regulations dealing with matters of a transitional or saving nature
(1) The Governor‑General may make regulations, not inconsistent with any other provision of this Schedule, prescribing matters of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2.
(2) Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.
Timor Gap Treaty (Transitional Arrangements) Act 2000 (No. 25, 2000)
4 The transition time
In this Act:
transition time means 1.23 am Australian Central Standard Time on 26 October 1999.
Note: This time corresponds to the time in New York when the United Nations Security Council adopted Resolution 1272 (1999), which established UNTAET and gave it responsibility for the administration of East Timor. In 2000 the text of the Resolution was available in the Library of the Department of Foreign Affairs and Trade and accessible on the Internet through the Department’s or the United Nations’ world‑wide web site.
5 Validity of things done by the Ministerial Council and the Joint Authority
(1) Any thing done by the Ministerial Council or the Joint Authority, during the period commencing on the transition time and ending on 5.55 pm Australian Central Standard Time on 10 February 2000, is not invalid:
(a) merely because the Republic of Indonesia ceased to be a party to the Treaty, and UNTAET became a party to the Treaty, at the transition time; or
(b) merely because of an invalidity in the membership of the Ministerial Council or the Joint Authority.
(2) In this section:
Joint Authority and Ministerial Council have the meanings given them by subsection 5(1) of the Petroleum (Timor Gap Zone of Cooperation) Act 1990.
Treaty has the meaning given by subsection 5(1) of the Petroleum (Australia‑Indonesia Zone of Cooperation) Act 1990 (as in force immediately before the transition time).
UNTAET means the United Nations Transitional Administration in East Timor.
6 Protection against retrospective criminal liability
A person does not commit an offence if the person would not have committed the offence had the amendments made by the items in Schedules 1 and 2 (other than items 18 to 25 of Schedule 2) commenced on the day on which this Act received the Royal Assent (rather than commencing at the transition time).
Migration Legislation Amendment Act (No. 1) 2000 (No. 28, 2000)
Schedule 1
2 Application
The provisions of the Subdivision inserted by item 1 that relate to the cancellation of approvals of persons as business sponsors apply only to approvals granted or renewed, whether before or after the commencement of this Schedule, as a result of applications made on or after 1 August 1996.
Schedule 2
4 Saving
Any regulations that:
(a) were in force, or were purportedly in force, under section 45 of the Migration Act 1958 immediately before the commencement of this Schedule; and
(b) could validly be made under section 46 of the Migration Act 1958 as amended by this Schedule;
have effect after the commencement of this Schedule as if they had been made under section 46 of the Migration Act 1958 as amended by this Schedule.
Schedule 3
3 Saving of existing authorisations
A person who, immediately before the commencement of this Schedule, was authorised, under paragraph (f) of the definition of officer in subsection 5(1) of the Migration Act 1958, to be an officer for the purposes of that Act is taken, after that commencement, to have been authorised to be such an officer under the paragraph substituted for the first‑mentioned paragraph by item 1 of this Schedule.
Schedule 9
6 Application for judicial review of decision of Immigration Review Tribunal pending at commencement
For the purposes of Part 8 of the Migration Act 1958, if:
(a) before the commencement of this Schedule, an application had properly been made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and
(b) that Court had not made an order on the application under subsection 481(1) of the Migration Act 1958 as previously in force before that commencement;
the application is taken to be an application properly made, on the day of that commencement, under section 476 of the Migration Act 1958 for the judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal.
7 Period for making application for judicial review of decision of Immigration Review Tribunal current at commencement
If:
(a) before the commencement of this Schedule, an application could have been properly made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and
(b) the period under section 478 of the Migration Act 1958 as previously in force for making the application had not ended before that commencement;
an application may be made under section 476 of the Migration Act 1958 for judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal. However, the period for making the application is to be worked out from the day, before that commencement, on which the applicant was notified of the decision.
8 Decision of Immigration Review Tribunal quashed or set aside and matter to which decision relates referred for further consideration
(1) For the purposes of Part 8 of the Migration Act 1958, if:
(a) before the commencement of this Schedule, a decision of the Immigration Review Tribunal was quashed or set aside under that Part by the Federal Court; and
(b) the matter to which the decision related was referred by that Court for further consideration; and
(c) no decision on that further consideration was made before that commencement;
the decision that was reviewed by the Immigration Review Tribunal is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement.
(2) For the purposes of Part 8 of the Migration Act 1958, if:
(a) after the commencement of this Schedule, a decision of the Immigration Review Tribunal made before that commencement is quashed or set aside by the Federal Court; and
(b) the matter to which the decision related is referred by that Court for further consideration;
the decision that was reviewed by the Immigration Review Tribunal is taken, on and after the day of the referral, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day.
9 Decision of Immigration Review Tribunal that the Minister has agreed to reconsider
(1) For the purposes of Part 8 of the Migration Act 1958, if:
(a) before the commencement of this Schedule, an application had been made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and
(b) before the judicial review application was determined by that Court, and before that commencement, the Minister agreed, in writing, to reconsider the decision; and
(c) no decision on that reconsideration was made before that commencement;
the decision that is to be reconsidered by the Minister is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement.
(2) For the purposes of Part 8 of the Migration Act 1958, if:
(a) before or after the commencement of this Schedule, an application has been or is made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal that was made before that commencement; and
(b) before the judicial review application was or is determined by that Court, but after that commencement, the Minister agrees, in writing, to reconsider the decision;
the decision that is to be reconsidered by the Minister is taken, on and after the day of the Minister’s agreement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day.
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)
Schedule 2
418 Transitional—pre‑commencement offences
(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:
(a) an offence committed before the commencement of this item; or
(b) proceedings for an offence alleged to have been committed before the commencement of this item; or
(c) any matter connected with, or arising out of, such proceedings;
as if the amendment or repeal had not been made.
(2) Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.
419 Transitional—pre‑commencement notices
If:
(a) a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and
(b) any or all of those other provisions are repealed by this Schedule; and
(c) the first‑mentioned provision is amended by this Schedule;
the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.
Migration Legislation Amendment (Overseas Students) Act 2000
(No. 168, 2000)
Schedule 3
7 Application
The amendment made by item 1 applies to visas granted after the commencement of this Schedule.
Schedule 4
3 Application of amendments
The amendments made by items 1 and 2 apply in relation to all student visas, whether granted before or after the commencement of this item.
4 Special condition on certain student visas
(1) This item applies to the following visas (and only those visas):
(a) all student visas that are in effect when this item commences;
(b) all student visas that are granted after this item commences but before 1 July 2001.
(2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.
(3) The condition is that:
(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student—the holder is enrolled in a full‑time course of study; and
(b) in any other case—the holder is enrolled in a registered course; and
(c) in the case of a holder whose education provider keeps attendance records—the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester—for the course; or
(ii) for a course that runs for at least a semester—for each term and semester of the course; and
(d) in any case—the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester—for the course; or
(ii) for a course that runs for at least a semester—for each term or semester (whichever is shorter) of the course.
(4) In this item:
student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa.
(5) Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as in those regulations, as in force from time to time.
(6) After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non‑compliance happened before this item commenced.
Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001 (No. 33, 2001)
4 Application provision
The amendment made by item 3 of Schedule 1 applies to regional sponsored employment visas granted after the commencement of this section, as a result of applications made after the commencement of this section.
Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (No. 58, 2001)
Schedule 1
20 Transitional—pending acts
If:
(a) an act is done before the commencement of this item; and
(b) that act is done under a provision of the Migration Act 1958 that is subsequently amended by this Schedule;
that act is taken on and after that commencement to be an act done under that provision as amended by this Schedule.
Border Protection (Validation and Enforcement Powers) Act 2001
(No. 126, 2001)
4 Definitions
In this Part:
Commonwealth officer includes a person who:
(a) is in the service or employment of the Commonwealth or an authority of the Commonwealth; or
(b) holds or performs the duties of any office or position under a law of the Commonwealth; or
(c) is a member of the Australian Defence Force.
validation period means the period starting on 27 August 2001 and ending at the beginning of the day on which this Act commences.
vessel has the same meaning as in the Migration Act 1958.
5 Action to which this Part applies
This Part applies to any action taken during the validation period by the Commonwealth, or by a Commonwealth officer, or any other person, acting on behalf of the Commonwealth, in relation to:
(a) the MV Tampa; or
(b) the Aceng; or
(c) any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully; or
(d) any person who was on board a vessel mentioned in paragraph (a), (b) or (c) at any time during the validation period (whether or not the action was taken while the person was on board the vessel).
6 Action to which this Part applies taken to be lawful
All action to which this Part applies is taken for all purposes to have been lawful when it occurred.
7 No proceedings in respect of action to which this Part applies
(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part applies, against:
(a) the Commonwealth; or
(b) a Commonwealth officer; or
(c) any other person who acted on behalf of the Commonwealth in relation to the action.
(2) This section applies to:
(a) the institution of proceedings on or after the day on which this Act receives the Royal Assent; and
(b) the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day.
8 Compensation for acquisition of property
(1) If:
(a) this Part would result in an acquisition of property; and
(b) any provision of this Part would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
9 Jurisdiction of High Court
Nothing in this Part is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
Migration Amendment (Excision from Migration Zone) Act 2001
(No. 127, 2001)
4 Application of amendments
The amendments made by this Act apply to a visa application made after the excision time for the excised offshore place concerned.
Example: If a person becomes an offshore entry person by entering Australia at Christmas Island, then the amendments apply to any visa application made by the person after 2 pm on 8 September 2001 by legal time in the Australian Capital Territory.
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (No. 128, 2001)
4 Application of amendments
The amendment made by item 7 of Schedule 1 applies to:
(a) the institution of proceedings on or after the day on which this Act receives the Royal Assent; and
(b) the continuation, after the day on which this Act receives the Royal Assent, of proceedings that were instituted before that day, being proceedings instituted after the excision time for the excised offshore place concerned.
Example: Proceedings of the kind mentioned in section 494AA of the Migration Act are instituted, before the day on which this Act receives the Royal Assent, in relation to a person who became an offshore entry person by entering Australia at Christmas Island. Those proceedings cannot be continued after the day on which this Act receives the Royal Assent.
Migration Legislation Amendment Act (No. 1) 2001 (No. 129, 2001)
Schedule 1
5 Application of amendments
(1) The amendments made by items 1 and 3 apply in relation to proceedings (including applications for leave to appeal or other appeal proceedings) begun after this Part commences.
(2) The amendment made by item 2 applies to matters remitted to the Federal Court after this Part commences.
(3) The amendment made by item 4 applies to decisions made after this Part commences.
7 Application of amendments
(1) The amendments made by this Part apply to a proceeding if the application to commence the proceeding is filed in a court on or after 14 March 2000.
(2) However, the amendments do not apply:
(a) if the relevant court began the substantive hearing of the proceeding before this Part commenced; or
(b) to an application for leave to appeal, or any other appeal proceeding, filed on or after 14 March 2000 if the application to commence the original court proceeding was filed before 14 March 2000.
8 Transitional—proceedings that contravene new section 486B
(1) If:
(a) a proceeding was begun before this Part commences; and
(b) section 486B of the Migration Act 1958, as amended by this Part, applies to the proceeding (see item 7); and
(c) the proceeding contravenes that section when this Part commences;
the court must treat the proceeding as if the court had lacked jurisdiction to hear the proceeding when it was begun.
(2) Despite any other time limit, a person who has an interest in such a proceeding may commence a fresh proceeding in relation to the matter concerned within 28 days after this Part commences, so long as the person complies with the Migration Act 1958, as amended by this Part, and all other laws relating to such proceedings (including a law relating to standing or requiring a fee to be paid).
(3) However, subitem (2) does not apply to a person in respect of a proceeding if item 9 applies to the proceeding.
9 Transitional—proceedings that contravene new section 486C
If:
(a) a proceeding was begun before this Part commences; and
(b) section 486C of the Migration Act 1958, as amended by this Part, applies to the proceeding (see item 7); and
(c) the proceeding contravenes that section when this Part commences;
the court must treat the proceeding as if the court had lacked jurisdiction to hear the proceeding when it was begun.
10 Transitional—refund of application fees
(1) If:
(a) a person has paid a fee to a court in respect of a proceeding; and
(b) because of the operation of item 8 or 9, the proceeding does not continue;
then, on application, the Commonwealth must refund the fee to the person.
Note: Section 28 of the Financial Management and Accountability Act 1997 contains a standing appropriation for the refund of such fees.
(2) If the fee was paid in respect of a proceeding brought on behalf of more than one person, then the Commonwealth must refund the fee to a person authorised in writing by all such persons to receive the refund.
11 Transitional—regulations
Despite subsection 12(2) of the Legislative Instruments Act 2003, a regulation made for the purposes of paragraph 486B(7)(a) or (d) or subparagraph 486C(2)(c)(iv) of the Migration Act 1958, as amended by this Part, may provide that the regulation is taken to have had effect from the beginning of 14 March 2000.
Schedule 2
7 Application of amendment
The amendment made by item 6 applies in relation to cancellations of visas under section 128 that take place after the commencement of that item.
Migration Legislation Amendment Act (No. 6) 2001 (No. 131, 2001)
Schedule 1
7 Application of amendment—Subdivision AL of Division 3 of Part 2 of the Migration Act 1958
Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 (other than section 91X) applies in relation to:
(a) an application for a protection visa made after the commencement of this item; and
(b) an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item; and
(c) an application for a protection visa made before the commencement of this item, where:
(i) a decision to refuse to grant the visa was made before that commencement; and
(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and
(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.
8 Application of amendment—section 91X of the Migration Act 1958
Section 91X of the Migration Act 1958 applies in relation to a proceeding that is instituted after the commencement of this item.
9 Application of amendment—section 501J of the Migration Act 1958
Section 501J of the Migration Act 1958 applies in relation to a decision of the Administrative Appeals Tribunal, whether made before, at or after the commencement of this item.
10 Application of amendment—section 501K of the Migration Act 1958
Section 501K of the Migration Act 1958 applies in relation to a review, where the application for review was made after the commencement of this item.
Migration Legislation Amendment (Judicial Review) Act 2001 (No. 134, 2001)
Schedule 1
8 Application
(1) If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted.
(2) The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:
(a) the decision was made on or after the commencement of this Schedule; or
(b) the decision:
(i) was made before the commencement of this Schedule; and
(ii) as at that commencement, an application for judicial review of the decision had not been lodged.
(3) A reference in subitem (1) or (2) to an application for judicial review of a decision is a reference to:
(a) an application for review of the decision under:
(i) section 44 of the Administrative Appeals Tribunal Act 1975; or
(ii) Part 8 of the Migration Act 1958; or
(iii) the Administrative Decisions (Judicial Review ) Act 1977; or
(b) an application for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of the decision under:
(i) section 75 of the Constitution; or
(ii) section 39B or 67C of the Judiciary Act 1903.
(4) The amendments made by items 7A and 7B apply to decisions made after the commencement of those items.
(5) The amendments made by items 7C and 7D apply in relation to proceedings that are commenced after the commencement of those items.
Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (No. 157, 2001)
Schedule 1
30 Application of amendments
The amendments of the Migration Act 1958 made by this Schedule apply in relation to:
(a) an application made under section 476 of that Act on or after the commencement of this item for review of a judicially‑reviewable decision made on or after the commencement of this item; and
(b) an application made under subsection 477(1) of that Act on or after the commencement of this item in respect of a failure to make a judicially‑reviewable decision that ought reasonably to have been made in a period that ends on or after the commencement of this item; and
(c) an application made under subsection 477(2) of that Act on or after the commencement of this item in respect of a failure to make a judicially‑reviewable decision that is required to be made in a period that ends on or after the commencement of this item.
Schedule 3
18 Application of amendments
The amendments of the Migration Act 1958 made by this Schedule apply in relation to applications made under section 477 of that Act after the commencement of this item.
Schedule 4
9 Application of amendments made by items 1, 2 and 3
The amendments of the Migration Act 1958 made by items 1, 2 and 3 of this Schedule apply in relation to proceedings instituted after the commencement of this item.
10 Application of amendments made by items 4, 5, 6, 7 and 8
The amendments of the Migration Act 1958 made by items 4, 5, 6, 7 and 8 of this Schedule apply in relation to proceedings instituted after the commencement of this item.
Schedule 5
2 Application of amendment
The amendment of the Migration Act 1958 made by this Schedule applies in relation to proceedings instituted after the commencement of this item.
Migration Legislation Amendment (Migration Agents) Act 2002 (No. 35, 2002)
Schedule 1
8 Application provision—automatic continuation of registration
The amendment made by item 7 applies to:
(a) any registration application made after the commencement of this item; and
(b) any registration application made before the commencement of this item, if the registered agent who made the application was still a registered agent immediately before the commencement of this item.
17 Application provision—disciplining former registered agents
The amendments made by items 9 to 16 apply to:
(a) any complaint about a person made after the commencement of this item in relation to his or her provision of immigration assistance before or after the commencement of this item; and
(b) any complaint about a person made before the commencement of this item, if the person was a registered agent immediately before the commencement of this item.
Migration Legislation Amendment (Procedural Fairness) Act 2002
(No. 60, 2002)
Schedule 1
7 Application
(1) The amendment made by item 1 applies in relation to any application for a visa made on or after the commencement of that item.
(2) The amendment made by item 2 applies in relation to any cancellation of a visa under section 109 of the Migration Act 1958 on or after the commencement of that item, where a notice in relation to the cancellation was given under section 107 of that Act on or after that commencement.
(3) The amendment made by item 3 applies in relation to any cancellation of a visa under section 116 of the Migration Act 1958 on or after the commencement of that item, where a notice in relation to the cancellation was given under section 119 of that Act on or after that commencement.
(4) The amendment made by item 4 applies in relation to any cancellation of a visa under section 128 of the Migration Act 1958 on or after the commencement of that item.
(5) The amendments made by items 5 and 6 apply in relation to any application for review made on or after the commencement of those items.
8 Relationship with section 474 of the Migration Act 1958
The amendments made by items 1 to 6 are not to be taken to limit the scope or operation of section 474 of the Migration Act 1958 in relation to anything done, or omitted to be done, in relation to any matter dealt with in any provision that is taken to be an exhaustive statement of the requirements of the natural justice hearing rule by a section of that Act that is inserted by one of those items.
Security Legislation Amendment (Terrorism) Act 2002 (No. 65, 2002)
Schedule 1
18 Saving of Proclamations
A Proclamation that was in force for the purpose of paragraph 24(1)(d) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a Proclamation that was in force for the purpose of paragraph 80.1(1)(e) of the Criminal Code.
Crimes Legislation Enhancement Act 2003 (No. 41, 2003)
Schedule 3
42 Saving provision
(1) The amendments made by this Schedule do not invalidate:
(a) an instrument made under, or referring to, a Part of the Crimes Act 1914 whose heading is repealed and substituted by this Schedule; or
(b) anything done under such an instrument or such a Part.
(2) Subitem (1) has effect whether the instrument was made, or the thing was done, before or after this Act received the Royal Assent.
Migration Legislation Amendment (Protected Information) Act 2003
(No. 75, 2003)
Schedule 1
7 Application—pre‑commencement proceedings
Sections 503B and 503C of the Migration Act 1958 apply in relation to proceedings before the Federal Court or the Federal Magistrates Court, whether those proceedings were instituted before, on or after the commencement of this item.
8 Application—section 503D of the Migration Act 1958
(1) Section 503D of the Migration Act 1958 applies to:
(a) agency details in relation to protected information if the information is given to an authorised migration officer on or after the commencement of this item; and
(b) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if:
(i) the details or information is the subject of a request for access under the Freedom of Information Act 1982; and
(ii) no decision under the Freedom of Information Act 1982 in respect of the request has been made, or has been taken to be made, before the commencement of this item; and
(c) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if the details or information is the subject of a process for the production of documents that has not been completed or complied with before the commencement of this item; and
(d) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if, after the commencement of this item, the details or information becomes either:
(i) the subject of a request for access under the Freedom of Information Act 1982; or
(ii) the subject of a process for the production of documents.
(2) In this item:
process for the production of documents includes discovery and a subpoena for production of documents.
protected information means information that is:
(a) communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and
(b) relevant to the exercise of a power under section 501, 501A, 501B or 501C.
Migration Amendment (Duration of Detention) Act 2003 (No. 90, 2003)
Schedule 1
2 Existing orders unaffected
Subsections 196(4) to (7) of the Migration Act 1958 as added by item 1 do not affect the validity of any order made by a court before the commencement of this Schedule.
Migration Legislation Amendment (Sponsorship Measures) Act 2003
(No. 99, 2003)
Schedule 2
2 Application
The amendment made by item 1 applies to decisions to refuse to grant a visa made on or after the commencement of the item.
Migration Legislation Amendment (Identification and Authentication) Act 2004
(No. 2, 2004)
Schedule 1
35 Review of operation of this Act
(1) The Minister must cause an independent review of the operation of the amendments made by this Act to be undertaken as soon as possible after the third anniversary of the commencement of this Schedule.
(2) A person who undertakes the review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
(4) In this item:
independent review means a review undertaken by persons who:
(a) in the Minister’s opinion, possess appropriate qualifications to undertake the review; and
(b) include a nominee of the Attorney‑General and a nominee of the Privacy Commissioner.
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (No. 48, 2004)
Schedule 1
172 Application—relation by employment
The amendments made by items 9 and 10 apply in relation to the consideration of registration applications made after the commencement of those items (regardless of whether the engagements occurred before or after that commencement).
173 Application—infringement notices
The amendments made by items 13 and 171 apply in relation to all offences (whether alleged to have been committed before or after those items commence) in respect of which no penalty has been imposed at the time of that commencement.
173A Application—list of former registered migration agents
The amendment made by item 38A applies in relation to persons ceasing to be registered migration agents either before or after the commencement of that item.
174 Application—removal of disciplinary details
The amendment made by item 39 applies in relation to details entered on the Register either before or after the commencement of that item.
175 Transitional—removal of disciplinary details
(1) This item applies in relation to:
(a) particulars of a caution given to a registered migration agent that had been on the Register for at least 12 months before the commencement of this item; and
(b) particulars of a suspension of a registered migration agent’s registration that had been on the Register for at least 5 years before the commencement of this item.
(2) The Migration Agents Registration Authority must remove the particulars from the Register within 28 days after the commencement of this item.
175A Application—proceedings finalised about previous registration
Subsection 288(6A) of the Migration Act 1958, as inserted by item 40, applies in relation to suspension or cancellation decisions made after the commencement of that item.
176 Application—withdrawal of applications
Subsection 288(7) of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made either before or after the commencement of that item.
177 Application—statutory declarations and answering of questions
Section 288B of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made after the commencement of that item.
178 Application—registration requirements
The amendments made by items 47 and 48 apply in relation to registration applications made after the commencement of those items (regardless of whether the previous registration occurred before or after that commencement).
179 Application—disciplinary action
The amendments made by items 49 and 50 apply in relation to the consideration of registration applications made either before or after the commencement of those items (regardless of whether the disciplinary action occurred before or after that commencement).
179A Application—automatic continuation of registration
The amendments made by items 46A and 63 apply in relation to expiry days that occur after the commencement of those items. However, those amendments do not apply in relation to suspension or cancellation decisions made before that commencement.
179B Application—no registration if suspension not completed
The amendment made by item 55A applies in relation to registration applications made after the commencement of that item. However, the amendment does not apply in relation to suspension decisions made before that commencement.
179C Application—no registration if cancellation in past 5 years
The amendment made by item 56 applies in relation to registration applications made after the commencement of that item (regardless of whether the cancellation occurred before or after that commencement).
179D Application—professional indemnity insurance
The amendment made by item 58A applies in relation to registration applications made after the commencement of that item.
180 Application—cautions
The amendment made by item 71 applies in relation to cautions given after the commencement of that item.
181 Application—disciplinary decisions
The amendments made by items 72, 74 and 137 apply in relation to decisions made after the commencement of those items.
182 Application—informing clients about disciplinary decisions
Section 305B of the Migration Act 1958, as inserted by item 73, applies in relation to decisions made either before or after the commencement of that item.
183 Application—high visa refusal rates
The amendments made by items 75 and 142 apply in relation to applications for visas, or applications for review, made after the commencement of those items.
184 Application—production of documents
The amendments made by items 104, 108, 109, 112, 113, 116, 117, 119, 121 and 125 apply in relation to documents created either before or after the commencement of those items.
185 Application—failure to comply with notice
The amendments made by items 115 and 116 apply in relation to notices given after the commencement of those items.
186 Application—notification obligations
The amendment made by item 145 applies in relation to events occurring after the commencement of that item.
187 Application—notification of giving of immigration assistance
The amendment made by item 149 applies in relation to applications for visas, or applications for review, made after the commencement of that item.
188 Application—disclosure of personal information
(1) The amendment made by item 166 applies in relation to information obtained either before or after the commencement of that item.
(2) Sections 332F and 332G of the Migration Act 1958, as inserted by item 170, apply in relation to information obtained either before or after the commencement of that item.
189 Application—removal of disciplinary details
Sections 332C and 332D of the Migration Act 1958, as inserted by item 170, apply in relation to details made available by electronic means either before or after the commencement of that item.
190 Application—protection from civil proceedings
Section 332E of the Migration Act 1958, as inserted by item 170, applies in relation to acts done after the commencement of that item.
191 Application—giving of notices
Section 332H of the Migration Act 1958, as inserted by item 170, applies in relation to notices given after the commencement of that item.
Migration Amendment (Detention Arrangements) Act 2005 (No. 79, 2005)
Schedule 1
20 Application of amendment made by item 10
The amendment made by item 10 applies to all persons in detention under section 189 of the Migration Act 1958 after the commencement of that item (including persons who are already in detention under that section when that item commences).
21 Application of amendment made by item 11
The amendment made by item 11 applies to all persons who, after the commencement of that item, are required or permitted by section 189 of the Migration Act 1958 to be detained, or are kept in detention under that section (including persons who are already in detention under that section when that item commences).
Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (No. 103, 2005)
Schedule 2
9 Saving of enforcement visas
The amendments made by this Part do not affect the validity of an enforcement visa granted before the commencement of the amendments.
12 Saving of enforcement visas
The amendments made by this Part do not affect the validity of an enforcement visa granted before the commencement of the amendments.
Migration Litigation Reform Act 2005 (No. 137, 2005)
Schedule 1
40 Definitions
In this Part:
commencement day means the day on which this Schedule commences.
migration decision has the same meaning as in the Migration Act 1958, as amended by Part 1 of this Schedule.
migration litigation has the same meaning as in Part 8B of the Migration Act 1958, as amended by Part 1 of this Schedule.
substantive proceedings has the same meaning as in paragraph 503B(1)(b) of the Migration Act 1958.
41 Application of item 1 and items 11 to 36
The amendments made by item 1 and items 11 to 36 of this Schedule apply to proceedings in relation to a migration decision that are commenced on or after the commencement day.
42 Transitional provision—migration decision made before commencement day
Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b) section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.
46 Application of item 37
The amendment made by item 37 of this Schedule applies in relation to the commencement of proceedings on or after the commencement day.
47 Application of item 38
The amendment made by item 38 of this Schedule applies to migration litigation commenced on or after the commencement day.
48 Application of item 39
(1) The amendment made by item 39 of this Schedule applies in relation to substantive proceedings within the original jurisdiction of the Federal Magistrates Court, or Federal Court, commenced on or after the commencement day.
(2) The amendment made by item 39 of this Schedule applies in relation to substantive proceedings within the appellate jurisdiction of the Federal Court if the proceedings from which the appeal arose were commenced on or after the commencement day.
Migration and Ombudsman Legislation Amendment Act 2005 (No. 141, 2005)
Schedule 1
5 Application of amendments
(1) The amendments made by items 1 and 3 of this Schedule apply only to applications made on or after the commencement of those items.
(2) The amendments made by items 2 and 4 of this Schedule apply in relation to:
(a) applications made on or after the commencement of this Schedule; and
(b) applications made before the commencement of this Schedule that, at the date of commencement, have not been decided.
Schedule 4
20 Application
The amendments made by this Schedule apply to instruments made on or after the commencement of this Schedule.
Migration Amendment (Employer Sanctions) Act 2007 (No. 7, 2007)
Schedule 1
2 Application
The amendment made by item 1 of this Schedule applies if:
(a) in a case where a person is referred for work in circumstances where an offence would be created by the amendment—the referral is made on or after the commencement of this Schedule; or
(b) in any other case—a person begins, on or after the commencement of this Schedule, to be allowed to do work in circumstances where an offence would be created by the amendment.
Schedule 2
5 Application
The amendment made by item 4 of this Schedule applies to activities engaged in on or after the commencement of this Schedule.
Migration Amendment (Border Integrity) Act 2007 (No. 62, 2007)
Schedule 1
4 Application
The amendments of the Migration Act 1958 made by this Schedule apply to declarations made under subsection 33(9) of that Act on or after the commencement of this item.
Schedule 2
35 Application
The amendments of the Migration Act 1958 made by this Schedule apply in relation to:
(a) persons who enter Australia; and
(b) persons who go outside the migration zone; and
(c) persons who travel, or appear to intend to travel, from a port; and
(d) persons who are on board, or about to board, vessels that are to leave Australia (whether or not after calling at places in Australia);
on or after the commencement of this item.
36 Transitional—instruments
(1) The following table has effect:
Regulations in force immediately before commencement |
Item | If, immediately before the commencement of this subitem, regulations made for the purposes of the following provision of the Migration Act 1958, were in force ... | the regulations are, on the commencement of this subitem, taken to have been made for the purposes of the following provision of that Act ... |
1 | paragraph 166(1)(aa) | paragraph 166(1)(c) |
2 | paragraph 166(1AA)(d) | paragraph 166(5)(d) |
3 | subsection 166(1C) | subsection 166(8) |
4 | subsection 166(2) | subsection 166(3) |
(2) The amendment made by item 9 of this Schedule does not affect the continuity of any regulations made for the purposes of paragraph 166(1)(b) of the Migration Act 1958 that were in force immediately before the commencement of this subitem.
(3) Subject to subitem (1), an amendment made by this Schedule does not affect the continuity of any other regulations made for the purposes of Division 5 of Part 2 of the Migration Act 1958, or a provision of that Division, that was in force immediately before the commencement of this subitem.
Migration Legislation Amendment (Information and Other Measures) Act 2007 (No. 63, 2007)
Schedule 1
61 Application
The amendments made by items 1 to 59 of this Schedule apply to access to, or disclosure of, identifying information that occurs after those items commence.
64 Transitional—Authorisations
(1) This item applies to an authorisation that:
(a) is in force under section 336D of the Migration Act 1958 immediately before this item commences; and
(b) specifies that access to identifying information is authorised for the purpose of making decisions under:
(i) the Migration Act 1958 or the regulations made under that Act; or
(ii) the Australian Citizenship Act 1948 or the regulations made under that Act.
(2) The authorisation has effect on and after that commencement as if it were an authorisation in force under that section that specified that access to identifying information is authorised for the purposes of that Act or the regulations made under that Act.
65 Application
The amendments made by items 62 and 63 of this Schedule apply to access to, or disclosure of, identifying information that occurs after those items commence.
71 Transitional—Authorisations
(1) This item applies to an authorisation that:
(a) is in force under section 336D of the Migration Act 1958 immediately before this item commences; and
(b) specifies that access to identifying information is authorised for the purpose of making decisions under:
(i) the Migration Act 1958 or the regulations made under that Act; or
(ii) the Australian Citizenship Act 1948 or the regulations made under that Act; or
(iii) the Australian Citizenship Act 2007 or the regulations made under that Act.
(2) The authorisation has effect on and after that commencement as if it were an authorisation in force under that section that specified that access to identifying information is authorised for the purposes of that Act or the regulations made under that Act.
72 Application
The amendment made by item 68, 69 or 70 of this Schedule applies to access to, or disclosure of, identifying information that occurs after that item commences.
Schedule 2
2 Application provision
The amendment of the Migration Act 1958 made by this Schedule applies in relation to any request made to the Department for access to a movement record:
(a) by the person to whom the record relates; or
(b) by the duly appointed agent of that person;
on or after the commencement of this Schedule.
Education Services for Overseas Students Legislation Amendment Act 2007 (No. 70, 2007)
Schedule 1
26 Application of items 24 and 25
The amendments made by items 24 and 25 apply in relation to a notice sent under section 20 the Education Services for Overseas Students Act 2000 after the commencement of this item.
Migration Amendment (Review Provisions) Act 2007 (No. 100, 2007)
Schedule 1
33 Application
The amendments made by this Schedule apply to an application made, after this item commences:
(a) under section 347 of the Migration Act 1958 for review of an MRT‑reviewable decision; or
(b) under section 412 of the Migration Act 1958 for review of an RRT‑reviewable decision.
Migration Legislation Amendment Act (No. 1) 2008 (No. 85, 2008)
Schedule 1
37 Application
(1) The amendments made by items 6 and 7 of this Schedule apply in relation to a decision on a review if:
(a) before the day on which those items commence, written notice of the day on which, and the time and place at which, the decision on the review is to be handed down has not been given by the Migration Review Tribunal to the applicant and the Secretary; or
(b) the decision on the review is made on or after the day on which those items commence.
Note: For a transitional provision, see item 38.
(2) The amendments made by items 13 and 26 of this Schedule apply in respect of:
(a) an application for a review of a decision that is made before the day on which those items commence, if the application has not been decided before that day; and
(b) an application for a review of a decision that is made on or after the day on which those items commence.
(3) The amendments made by items 19 and 20 of this Schedule apply in relation to a decision on a review if:
(a) before the day on which those items commence, written notice of the day on which, and the time and place at which, the decision on the review is to be handed down has not given by the Refugee Review Tribunal to the applicant and the Secretary; or
(b) the decision on the review is made on or after the day on which those items commence.
Note: For a transitional provision, see item 39.
38 Transitional provision—handing down of decisions by Migration Review Tribunal
(1) This item applies if, before the day on which items 6 and 7 of this Schedule commence, written notice of the day on which, and the time and place at which, a decision on a review is to be handed down is given by the Migration Review Tribunal to the applicant and the Secretary under section 368A of the Migration Act 1958.
(2) Despite the amendment of section 368 of that Act made by item 6 of this Schedule and the repeal of sections 368A to 368C of that Act made by item 7 of this Schedule, those sections continue to apply, after the day on which those items commence, in relation to the decision on the review.
39 Transitional provision—handing down of decisions by Refugee Review Tribunal
(1) This item applies if, before the day on which items 19 and 20 of this Schedule commence, written notice of the day on which, and the time and place at which, a decision on a review is to be handed down is given by the Refugee Review Tribunal to the applicant and the Secretary under section 430A of the Migration Act 1958.
(2) Despite the amendment of section 430 of that Act made by item 19 of this Schedule and the repeal of sections 430A to 430C of that Act made by item 20 of this Schedule, those sections continue to apply, after the day on which those items commence, in relation to the decision on the review.
40 Transitional provision—appointment of Deputy Principal Member of the Refugee Review Tribunal
The person holding office as the Deputy Principal Member of the Refugee Review Tribunal under section 459 of the Migration Act 1958, as in force immediately before the commencement of items 28 and 29 of this Schedule, is taken to have been duly appointed as the Deputy Principal Member of the Refugee Review Tribunal by the Governor‑General under section 459 of that Act, as amended by this Schedule, for the balance of the person’s term of appointment that remained immediately before the day on which those items commence.
Schedule 2
15 Application—amendments to section 245L
Subject to the regulations, the amendments of section 245L of the Migration Act 1958 made by this Part apply in relation to journeys begun on or after the commencement of this item.
20 Application
The amendments made by items 18 and 19 of this Schedule apply in relation to persons who go outside the migration zone on or after the commencement of those items.
Schedule 3
2 Application
The amendment made by item 1 of this Schedule applies to a non‑citizen child born in Australia on or after 1 September 1994.
6 Application
The amendment made by item 5 of this Schedule applies to a non‑citizen child born in Australia on or after 1 September 1994 who is taken to have been granted a visa or visas under section 78 of the Migration Act 1958.
20 Application
The amendments made by items 18 and 19 of this Schedule apply in relation to all applications for visas made after the commencement of those items.
23 Application
Section 48 of the Migration Act 1958, as amended by item 22 of this Schedule, applies to all applications for visas made after the commencement of that item (the commencement time), regardless of:
(a) whether the bridging visa mentioned in subsection 48(3) of that Act was granted before or after the commencement time; and
(b) whether the travel mentioned in subsection 48(3) of that Act took place before or after the commencement time.
25 Application
The amendment made by item 24 of this Schedule applies in relation to all bridging visas that are held at any time after the commencement of that item, regardless of whether the bridging visas were granted before or after that time.
Schedule 4
6 Application
(1) The amendment made by item 2 of this Schedule applies in respect of a person who has been granted:
(a) a bridging visa (within the meaning of the Migration Act 1958); or
(b) a criminal justice visa (within the meaning of that Act);
on or after the day on which that item commences.
(2) The amendment made by item 4 of this Schedule applies in relation to an authorised recipient, whether the notice under subsection 494D(1) of the Migration Act 1958 in relation to the authorised recipient is given before, on or after the day on which that item commences.
(3) The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences.
7 Validation of pre‑commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas
(1) To avoid doubt, any decision made or purported to have been made:
(a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or
(b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences;
to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.
(2) In subitem (1):
transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations.
transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations.
Migration Amendment (Notification Review) Act 2008 (No. 112, 2008)
Schedule 1
29 Application
The amendments made by this Schedule apply to a document given, dispatched or transmitted on or after the day on which this item commences.
Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (No. 144, 2008)
Schedule 10
24 Application of amendments of sections 36 and 48A
The amendments of sections 36 and 48A of the Migration Act 1958 made by this Part apply in relation to:
(a) applications for visas made on or after the commencement of this Part; and
(b) applications for visas made before that commencement and not decided before that commencement.
28 Application of amendments affecting section 83
Amendments of subsection 83(1)
(1) The amendments of subsection 83(1) of the Migration Act 1958 made by this Part apply in relation to visas granted on or after the commencement of this Part.
Other amendments affecting subsection 83(1)
(2) The definitions of de facto partner and spouse in subsection 5(1) and sections 5CB and 5F of the Migration Act 1958 (as amended by this Part) apply for the purposes of the operation of subsection 83(1) in relation to visas granted on or after the commencement of this Part.
(3) Subitem (2) does not limit the operation of those definitions in relation to other provisions of that Act.
Amendments affecting subsection 83(2)
(4) The definitions of child and parent in subsection 5(1) of the Migration Act 1958 (as amended by this Part) apply for the purposes of the operation of subsection 83(2) in relation to visas granted on or after the commencement of this Part.
(5) Subitem (4) does not limit the operation of those definitions in relation to other provisions of that Act.
33 Application of amendments affecting sections 84 and 87
(1) The definition of child in subsection 5(1) of the Migration Act 1958 (as amended by this Part) applies for the purposes of the operation of sections 84 and 87 of that Act in relation to:
(a) applications for visas that are made on or after the commencement of this Part; and
(b) applications for visas that were made before the commencement of this Part and were not finally determined before that commencement.
(2) Subitem (1) does not limit the operation of that definition in relation to other provisions of that Act.
(3) The amendments of sections 84 and 87 of the Migration Act 1958 made by this Part apply in relation to:
(a) applications for visas that are made on or after the commencement of this Part; and
(b) applications for visas that were made before the commencement of this Part and were not finally determined before that commencement.
43 Application of amendments of section 211
The amendments of section 211 of the Migration Act 1958 made by this Part apply in relation to detention starting on or after the commencement of this Part.
47 Application of amendments of section 212
The amendments of section 212 of the Migration Act 1958 made by this Part apply in relation to removal and deportation on or after the commencement of this Part.
64 Application of amendments of Subdivision B of Division 12 of Part 2
The amendments of Subdivision B of Division 12 of Part 2 of the Migration Act 1958 made by this Part apply in relation to visas applied for on or after the commencement of this Part.
69 Application of amendments of section 338
The amendments of section 338 of the Migration Act 1958 made by this Part apply to decisions made on or after the commencement of this Part.
Migration Legislation Amendment (Worker Protection) Act 2008
(No. 159, 2008)
Schedule 1
44 Definitions
In this Part:
approved professional development sponsor has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before this Schedule commences.
approved sponsor has the same meaning as in the old law.
new law means Division 3A of Part 2 of the Migration Act 1958 as in force immediately after this Schedule commences, and any other law of the Commonwealth as far as it relates to Division 3A of that Act.
old law means Division 3A of Part 2 of the Migration Act 1958 as in force immediately before this Schedule commences.
standard business sponsor has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before this Schedule commences.
45 Standard business sponsors to satisfy sponsorship obligations from commencement
(1) This item applies in respect of a person who, immediately before this Schedule commences:
(a) is a standard business sponsor; or
(b) is an approved sponsor, other than an approved professional development sponsor.
(2) The new law applies to the person, on and after the day on which this Schedule commences, as if the person were approved as a sponsor under section 140E of the new law in relation to the class prescribed by the regulations for standard business sponsors.
(3) The terms specified in the person’s approval as a sponsor under section 140G of the old law continue to apply, on and after the day on which this Schedule commences, to the person.
(4) A term of a kind specified in the person’s approval as a sponsor under section 140G of the old law may be prescribed by the regulations for the purposes of paragraph 140GA(2)(a) of the new law.
Note: This means that the term may be varied under section 140GA of the new law.
(5) If the person had made an undertaking under section 140H of the old law, then, on and after the day on which this Schedule commences:
(a) the undertaking ceases to have effect; and
(b) the person must satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.
(6) However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.
(7) To avoid doubt, the new law applies:
(a) in the case of a partnership—in respect of a partner even if the partner has not made an election under section 140Z of the old law in relation to a sponsorship obligation; and
(b) in the case of an unincorporated association—in respect of a member of the committee of management of the association even if the member has not made an election under section 140ZE of the old law in relation to a sponsorship obligation.
46 Certain former standard business sponsors to satisfy sponsorship obligations from commencement
(1) This item applies in respect of a person who, immediately before this Schedule commences:
(a) was both a standard business sponsor and an approved sponsor (other than an approved professional development sponsor); and
(b) remained bound by an undertaking made under section 140H of the old law that was enforceable under section 140Q of the old law.
(2) The new law applies to the person, on and after the day on which this Schedule commences, as if the person were a former approved sponsor under the new law in relation to the class prescribed by the regulations for standard business sponsors.
(3) On and after the day on which this Schedule commences:
(a) the undertaking ceases to have effect; and
(b) the person must satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.
(4) However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.
47 Recovery of debts from standard business sponsors
If, before the day on which the Schedule commences:
(a) a debt of a kind mentioned in section 140R or 140S of the old law exists; and
(b) proceedings for recovery of the debt have not been brought in a court of competent jurisdiction;
then, section 140S of the new law applies:
(c) in relation to the debt—as if the debt were an amount prescribed by the regulations under section 140H of the new law in relation to a sponsorship obligation; and
(d) in relation to a person who is or was a standard business sponsor immediately before this Schedule commences—as if the person were an approved sponsor under section 140E of the new law.
48 Continued effect of Division 3A of the Migration Act 1958 for approved professional development sponsors
Despite the repeals and amendments made by Schedule 1, the old law continues to apply to a person who is an approved professional development sponsor on the day on which this item commences until the person ceases to be an approved professional development sponsor.
49 Pending applications
If:
(a) a person has applied for approval as a sponsor under section 140E of the old law; and
(b) the person’s application is not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before the day on which this Schedule commences;
then:
(c) the application is treated as if it had been made on the day on which this Schedule commences; and
(d) if criteria prescribed under section 140E of the new law are satisfied—the Minister must approve the person as a sponsor in relation to one or more classes prescribed for the purpose of subsection 140E(2) of the new law.
50 Application
Sections 140SA to 140SC of the Migration Act 1958 (as inserted by item 27 of this Schedule) apply in relation to a proceeding that begins on or after the day on which this Schedule commences.
51 Transitional regulations
The Governor‑General may make regulations prescribing matters of a transitional nature (including any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.
Migration Legislation Amendment Act (No. 1) 2009 (No. 10, 2009)
Schedule 1
17 Application
The amendments made by this Schedule apply to invitations made by the Migration Review Tribunal and the Refugee Review Tribunal on or after the commencement of this Schedule.
Schedule 2
7 Application
(1) The amendments made by this Schedule apply to applications under section 477, 477A or 486A of the Migration Act 1958 made on or after the commencement of this Schedule.
(2) If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.
Schedule 3
2 Application
The amendment made by this Schedule applies to judgments made on or after the commencement of this Schedule that make an order or refuse to make an order under subsection 477(2) or 477A(2) of the Migration Act 1958.
Migration Amendment (Abolishing Detention Debt) Act 2009 (No. 85, 2009)
Schedule 1
8 Transitional—cessation of arrangements to the extent that they relate to detention debt
(1) An arrangement:
(a) referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Migration Act 1958; and
(b) that existed immediately before the commencement of this Part;
ceases to have effect on that commencement to the extent that it was an arrangement to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
(2) This item does not affect the validity of a certificate given under section 145, 146, 147 or 148 of that Act.
25 Extinguishment of outstanding detention debts
(1) An immigration detention liability that existed under one or more of the following immediately before the commencement of this Part:
(a) section 209, 211, 262 or 264, or subsection 151(3) or 213(3), of the Migration Act 1958;
(b) an undertaking or obligation prescribed by regulations made for the purposes of subsection 140H(1) of that Act;
(c) an arrangement referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of that Act;
(d) any other instrument;
ceases on the commencement of this Part.
(2) In this item:
immigration detention liability means a liability to the extent that it was a liability to pay the Commonwealth an amount relating to the cost of:
(a) a person’s immigration detention; or
(b) a non‑citizen’s detention under the Migration Act 1958.
Note 1: The liability ceases to be recoverable as a debt.
Note 2: The liability ceases even if the Commonwealth had previously written it off.
Note 3: This item does not apply to a liability to the extent that a person had already discharged it.
Note 4: This item does not cease a person’s liability, under section 262 of that Act, to pay the costs of immigration detention for detention happening after the commencement of this Part.
33 Transitional—cessation of undertakings to the extent that they relate to detention debt
An undertaking:
(a) prescribed by regulations made for the purposes of subsection 140H(1) of the Migration Act 1958; and
(b) that continued to have effect on the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 because of Part 2 of that Schedule; and
(c) that existed immediately before the commencement of this Part;
ceases to have effect on the commencement of this Part to the extent that it was an undertaking to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
Anti‑People Smuggling and Other Measures Act 2010 (No. 50, 2010)
Schedule 1
11 Application
Section 236A of the Migration Act 1958 as amended by this Act applies to offences committed on or after the commencement of this item.
