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 Information Commissioner or the Ombudsman relating to action taken by the Department; or
(ga) is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or
(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
