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Migration Act 1958

Authoritative Version
  • - C2017C00384
  • In force - Superseded Version
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Act No. 62 of 1958 as amended, taking into account amendments up to Marriage Amendment (Definition and Religious Freedoms) Act 2017
An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons
Administered by: Home Affairs
Registered 09 Dec 2017
Start Date 09 Dec 2017
End Date 10 May 2018
Table of contents.

Commonwealth Coat of Arms of Australia

Migration Act 1958

No. 62, 1958

Compilation No. 137

Compilation date:                              9 December 2017

Includes amendments up to:            Act No. 129, 2017

Registered:                                         9 December 2017

This compilation is in 2 volumes

Volume 1:       sections 1–261K

Volume 2:       sections 262–507

                        Schedule

                        Endnotes

Each volume has its own contents

 

About this compilation

This compilation

This is a compilation of the Migration Act 1958 that shows the text of the law as amended and in force on 9 December 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 2—Arrival, presence and departure of persons                                       1

Division 14—Recovery of costs from certain persons                                1

262........................ Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons        1

263........................ Secretary or Australian Border Force Commissioner able to issue notice of debt    2

264........................ Garnishee notice................................................................. 2

265........................ Debt from failure to comply with garnishee notice............. 4

266........................ Future debts........................................................................ 5

267........................ Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts            5

268........................ Application of Division to the Crown................................. 6

Division 14A—Monitoring compliance with student visa conditions  7

Subdivision A—Preliminary                                                                                   7

268AA.................. Definitions.......................................................................... 7

268AB................... Division binds the Crown................................................... 8

268AD.................. Powers conferred on magistrates in their personal capacity 8

Subdivision B—Notices requiring information and documents                     8

268BA................... Production notices.............................................................. 8

268BB................... Contents of the production notice....................................... 9

268BC................... Serving production notices............................................... 10

268BD................... Attendance notices............................................................ 10

268BE................... Contents of attendance notice............................................ 11

268BF................... Scales of expenses............................................................ 11

268BG................... Reasonable compensation for giving copies..................... 11

268BH................... Offence: failing to comply with a notice........................... 12

268BI.................... Offence: giving false or misleading information............... 12

268BJ.................... Offence: giving false or misleading document.................. 12

268BK................... Information and documents that incriminate a person....... 13

268BL................... Copies of documents........................................................ 13

268BM.................. Officer may retain documents........................................... 13

268BN................... Owner of document must be given copy.......................... 14

268BO................... Retaining documents......................................................... 14

268BP................... Officer may apply to magistrate or tribunal member for a further period 15

268BQ................... Magistrate or tribunal member may order retention for further period     15

Subdivision C—Searching education providers’ premises                            16

268CA................... Authorised officer may enter premises for a visa monitoring purpose     16

268CB................... Being on premises with consent....................................... 17

268CC................... Consent............................................................................. 17

268CD................... Authorised officer may apply for monitoring warrant...... 17

268CE................... Magistrate or tribunal member may issue monitoring warrant 17

268CF................... Magistrate or tribunal member may require more information 18

268CG................... Contents of monitoring warrant........................................ 18

268CH................... Use of reasonable force and assistance............................. 18

268CI.................... Monitoring powers of authorised officers........................ 19

268CJ.................... Authorised officer on premises with consent may ask questions             20

268CK................... Authorised officer on premises under warrant may ask questions           21

268CL................... Offence: failure to answer question.................................. 21

268CM.................. Offence: giving false or misleading information............... 22

268CN................... Offence: giving or showing documents that are false or misleading in material particulars      22

268CO................... Use of electronic equipment in exercising monitoring powers 23

268CP................... Use of electronic equipment by experts............................ 23

268CQ................... Extension of period........................................................... 24

268CR................... Powers without warrant in emergency situations.............. 24

268CS................... Retaining seized things..................................................... 25

268CT................... Authorised officer may apply for a thing to be retained for a further period            25

268CU................... Magistrate or tribunal member may order that thing be retained               26

268CV................... Occupier to provide authorised officer with all facilities and assistance   26

268CW.................. Announcement before entry.............................................. 27

268CX................... Copy of monitoring warrant to be given to occupier before entry            27

268CY................... Compensation for damage to electronic equipment or data 27

268CZ................... Occupier entitled to be present during execution of monitoring warrant  28

268CZA................ Identity cards.................................................................... 28

268CZB................. Authorised officer must produce identity card on request. 29

268CZC................. Officer may apply for warrants by telephone etc.............. 29

268CZD................ Magistrate or tribunal member may grant warrant by telephone etc.        30

268CZE................. Procedure for issuing warrant by telephone etc................ 30

268CZF................. Procedure after telephone warrant ceases or is executed... 31

268CZG................ Form of warrant authorises exercise of power.................. 31

268CZH................ Court to assume that exercise of power not authorised by telephone etc. warrant    32

Division 15—General                                                                                                 33

269........................ Securities.......................................................................... 33

270........................ Reports of absences of crews of vessels........................... 34

271........................ Proof of certain matters..................................................... 35

272........................ Migrant centres................................................................. 38

273........................ Detention centres.............................................................. 39

274........................ Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons.................................................................. 40

Part 3—Migration agents and immigration assistance                                  41

Division 1—Preliminary                                                                                            41

275........................ Interpretation..................................................................... 41

276........................ Immigration assistance...................................................... 42

277........................ Immigration legal assistance............................................. 44

278........................ Relation by employment................................................... 46

279........................ Part VIIC of the Crimes Act 1914 to apply to this Part..... 47

Division 2—Restrictions on giving of immigration assistance and making of immigration representations                                                                                                                      48

280........................ Restrictions on giving of immigration assistance.............. 48

281........................ Restriction on charging fees for immigration assistance... 50

282........................ Restriction on charging fees for immigration representations.. 50

283........................ False representation that a person is a registered migration agent             52

284........................ Restriction on self‑advertising of the giving of immigration assistance    52

285........................ Restriction on other advertising of immigration assistance 53

Division 3—Registration of migration agents                                               54

286........................ Individuals may be registered as migration agents............ 54

287........................ Register of Migration Agents........................................... 54

288........................ Application for registration............................................... 55

288A..................... Publishing requirement..................................................... 57

288B...................... Requiring applicants to make statutory declarations or to answer questions            57

289........................ Registration....................................................................... 58

289A..................... Applicant must not be registered if does not satisfy registration requirements         59

290........................ Applicant must not be registered if not a person of integrity or not fit and proper   59

290A..................... Applicant for repeat registration must not be registered if he or she has not done continuing professional development...................................................................... 61

290B...................... Applicant must not be registered if any unpaid registration status charge                61

291........................ Applicant must not be registered if registration refused in past year        61

291A..................... Applicant must not be registered if suspension would be in effect           61

292........................ Applicant must not be registered if registration cancelled in past 5 years 62

292A..................... Applicant must not be registered if any barring period has not ended      62

292B...................... Applicant must not be registered unless he or she holds appropriate professional indemnity insurance  63

293........................ Applicant under 18 must not be registered........................ 63

294........................ Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa........................................................................ 63

295........................ Notice of refusal of application......................................... 63

299........................ Period of registration........................................................ 64

300........................ Automatic continuation of registration.............................. 64

301........................ Migration Agents Registration Authority must warn of expiry                66

302........................ Automatic deregistration................................................... 66

303........................ Disciplining registered migration agents........................... 66

304........................ Period of suspension........................................................ 67

304A..................... Conditions for lifting cautions.......................................... 68

305........................ Notice of disciplinary decision.......................................... 68

305A..................... Making disciplinary details publicly available................... 68

305B...................... Providing disciplinary details to clients............................. 69

305C...................... Requiring registered migration agents to give information or documents 69

306........................ Review by the Administrative Appeals Tribunal.............. 71

306AA.................. Stay orders........................................................................ 71

Division 3AA—Disciplining registered migration agents for engaging in vexatious activity    72

Subdivision A—Definitions                                                                                    72

306AB................... Definitions........................................................................ 72

Subdivision B—Referral of registered migration agents for disciplinary action         72

306AC................... Minister may refer registered migration agent to the Migration Agents Registration Authority               72

306AD.................. Ministerial determinations................................................. 74

306AE................... Registered migration agent may make submissions.......... 75

306AF................... Notice of referral decision under section 306AC.............. 76

306AG.................. Migration Agents Registration Authority’s decision after a referral under section 306AC      76

306AGAA............ Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action 78

306AGAB............. Notice of referral decision under section 306AG.............. 80

306AGAC............. Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA.......................................................................................... 80

306AGA............... Cautions or suspensions................................................... 82

Subdivision D—Review                                                                                           82

306AJ.................... Review by the Administrative Appeals Tribunal.............. 82

306AK................... Stay orders........................................................................ 83

Subdivision E—Making disciplinary details available                                  83

306AL................... Making disciplinary details publicly available................... 83

306AM.................. Providing disciplinary details to clients............................. 84

Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents                                                                                                                      85

306A..................... Objects of this Division.................................................... 85

306B...................... Inactive migration agents.................................................. 85

306C...................... Clients............................................................................... 86

306D..................... Power to obtain documents from inactive migration agent 87

306E...................... Power to obtain documents from representative of deceased inactive migration agent             88

306F...................... Power to obtain documents from representative of deceased registered migration agent          89

306G..................... Reasonable compensation................................................. 90

306H..................... Failure to comply with notice............................................ 90

306J....................... Self‑incrimination............................................................. 91

306K...................... Migration Agents Registration Authority to give client documents to clients           91

306L...................... Compensation—constitutional safety‑net.......................... 92

Division 4—Investigations and decision‑making by the Migration Agents Registration Authority       94

308........................ Requiring registered migration agents to give information 94

309........................ Persons may make submissions....................................... 95

310........................ Persons may appear before Migration Agents Registration Authority     95

311........................ Migration Agents Registration Authority not bound by legal forms etc.  96

Division 4A—Disciplining former registered migration agents           97

Subdivision A—Complaints about provision of immigration assistance  97

311A..................... Barring former registered migration agents from being registered for up to 5 years                97

311B...................... Notice of disciplinary decision.......................................... 97

311C...................... Making disciplinary details publicly available................... 98

311D..................... Former registered migration agent may make a submission etc.               99

311E...................... Authority not bound by legal forms etc............................ 99

311EA................... Requiring former registered migration agents to give information or documents     100

311F...................... Review by the Administrative Appeals Tribunal............ 101

Subdivision B—Engaging in vexatious activity                                             101

311G..................... Definitions...................................................................... 101

311H..................... Minister may refer former registered migration agent for disciplinary action           101

311J....................... Former registered migration agent may make submissions 102

311K...................... Notice of referral decision............................................... 103

311L...................... Taking of disciplinary action........................................... 103

311M..................... Review by the Administrative Appeals Tribunal............ 105

311P...................... Making disciplinary details publicly available................. 105

Division 5—Obligations of registered migration agents                        107

312........................ Notification obligations................................................... 107

312A..................... Notification of giving of immigration assistance to visa applicants          108

312B...................... Notification of giving of immigration assistance to review applicants      108

313........................ Persons charged for services to be given detailed statement of services   109

314........................ Code of Conduct for migration agents............................ 110

Division 6—Migration Agents Registration Authority                          111

315........................ Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority........................................................................................ 111

316........................ Functions of Migration Agents Registration Authority.. 111

317........................ General powers of the Migration Agents Registration Authority             112

318........................ Power to refer people to mediation................................. 112

319........................ Power to refer lawyers’ conduct to other authorities....... 112

319A..................... Institute may delegate powers and functions................... 113

320........................ Minister may delegate powers and functions.................. 114

321........................ Disclosure of personal information to the Migration Agents Registration Authority               114

321A..................... Disclosure of personal information by the Migration Agents Registration Authority              115

322........................ Annual report.................................................................. 115

Division 6A—Registration application fees and registration status charges      117

332A..................... Collection of registration status charge........................... 117

332B...................... Payments to Migration Institute of Australia Limited..... 117

Division 7—Other things                                                                                        118

332C...................... Removing disciplinary details—registered migration agents 118

332D..................... Removing disciplinary details—former registered migration agents        118

332E...................... Protection from civil proceedings................................... 118

332F...................... Disclosure of personal information by the Secretary...... 120

332G..................... Disclosure of personal information by a review authority 120

332H..................... Giving of notices under this Part.................................... 121

Part 4—Offences relating to decisions under Act                                          124

334........................ Offences in relation to false or misleading statements regarding the making of decisions        124

335........................ Offence of undertaking, for reward, to cause decisions to be made etc.   124

336........................ Court may order reparation for loss suffered.................. 125

Part 4A—Obligations relating to identifying information                        126

Division 1—Preliminary                                                                                          126

336A..................... Definitions...................................................................... 126

336B...................... Application..................................................................... 127

Division 2—Accessing identifying information                                           128

336C...................... Accessing identifying information.................................. 128

336D..................... Authorising access to identifying information................ 128

Division 3—Disclosing identifying information                                          130

336E...................... Disclosing identifying information................................. 130

336F...................... Authorising disclosure of identifying information to foreign countries etc.             133

336FA................... Disclosure of certain personal identifiers to selected individuals              136

336FB................... Disclosure of other relevant information to selected individuals              137

336FC................... Disclosure of certain personal identifiers to the general public 137

336FD................... Disclosure of other relevant information to the general public 139

Division 4—Modifying and impairing identifying information          140

336G..................... Unauthorised modification of identifying information.... 140

336H..................... Unauthorised impairment of identifying information...... 140

336J....................... Meanings of unauthorised modification and unauthorised impairment etc.            140

Division 5—Destroying identifying information                                        142

336K...................... Destroying identifying information................................. 142

336L...................... Identifying information that may be indefinitely retained 143

Part 5—Review of Part 5‑reviewable decisions                                               145

Division 1—Interpretation                                                                                     145

336M..................... Simplified outline of this Part......................................... 145

336N..................... Scope of this Part............................................................ 146

337........................ Interpretation................................................................... 146

Division 2—Part 5‑reviewable decisions                                                        148

338........................ Definition of Part 5‑reviewable decision........................ 148

339........................ Conclusive certificates.................................................... 151

Division 3—Part 5‑reviewable decisions: Tribunal review                  152

347........................ Application for review of Part 5‑reviewable decisions... 152

348........................ Tribunal to review Part 5‑reviewable decisions.............. 153

349........................ Tribunal powers on review of Part 5‑reviewable decisions 154

350........................ Review of assessments made under section 93............... 154

351........................ Minister may substitute more favourable decision.......... 155

352........................ Tribunal to notify Secretary of application for review of Part 5‑reviewable decisions             156

Division 4—Part 5‑reviewable decisions: Tribunal powers                 158

353........................ Tribunal’s way of operating............................................ 158

353B...................... Guidance decisions......................................................... 158

Division 5—Part 5‑reviewable decisions: conduct of review              159

357A..................... Exhaustive statement of natural justice hearing rule........ 159

358........................ Documents to be given to the Tribunal........................... 159

359........................ Tribunal may seek information....................................... 159

359AA.................. Information and invitation given orally by Tribunal while applicant appearing        160

359A..................... Information and invitation given in writing by Tribunal. 161

359B...................... Requirements for written invitation etc........................... 162

359C...................... Failure to give information, comments or response in response to written invitation               163

360........................ Tribunal must invite applicant to appear.......................... 163

360A..................... Notice of invitation to appear.......................................... 164

361........................ Applicant may request Tribunal to call witness and obtain written material             164

362........................ Certain bridging visa decisions—request to call witnesses 165

362A..................... Applicant entitled to have access to written material before Tribunal       166

362B...................... Failure of applicant to appear before Tribunal................. 166

362C...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant          168

363........................ Powers of the Tribunal etc.............................................. 170

363A..................... Tribunal does not have power to permit a person to do something he or she is not entitled to do            170

364........................ Tribunal’s power to take evidence.................................. 171

365........................ Review to be in public.................................................... 171

366........................ Oral evidence by telephone etc........................................ 172

366A..................... Applicant may be assisted by another person while appearing before Tribunal       172

366B...................... Other persons not to be assisted or represented while appearing before Tribunal    173

366C...................... Interpreters...................................................................... 173

366D..................... Examination and cross‑examination not permitted.......... 174

367........................ Certain bridging visa decisions—to be made within prescribed period    174

Division 6—Part 5‑reviewable decisions: Tribunal decisions             175

368........................ Tribunal’s decision and written statement....................... 175

368A..................... Notifying parties of Tribunal’s decision (decision not given orally)        176

368D..................... Tribunal’s decisions given orally.................................... 177

Division 7—Part 5‑reviewable decisions: offences                                   180

370........................ Failure to comply with summons.................................... 180

371........................ Refusal to be sworn or to answer questions................... 180

Division 8—Part 5‑reviewable decisions: miscellaneous                       182

375........................ Restrictions on disclosure of certain information etc....... 182

375A..................... Certain information only to be disclosed to Tribunal...... 182

376........................ Tribunal’s discretion in relation to disclosure of certain information etc. 183

378........................ Tribunal may restrict publication of certain matters......... 184

Division 8A—Part 5‑reviewable decisions: giving and receiving documents     185

379AA.................. Giving documents by Tribunal where no requirement to do so by section 379A or 379B method          185

379A..................... Methods by which Tribunal gives documents to a person other than the Secretary 186

379B...................... Methods by which Tribunal gives documents to the Secretary                188

379C...................... When a person other than the Secretary is taken to have received a document from the Tribunal            189

379D..................... When the Secretary is taken to have received a document from the Tribunal           191

379EA................... Giving documents by Tribunal—combined applications 191

379F...................... Giving documents etc. to the Tribunal............................ 192

379G..................... Authorised recipient........................................................ 192

Part 7—Review of Part 7‑reviewable decisions                                               194

Division 1—Interpretation                                                                                     194

408........................ Simplified outline of this Part......................................... 194

409........................ Scope of this Part............................................................ 195

410........................ Interpretation................................................................... 195

Division 2—Part 7‑reviewable decisions                                                        196

411........................ Definition of Part 7‑reviewable decision........................ 196

412........................ Application for review of Part 7‑reviewable decisions... 197

414........................ Tribunal to review Part 7‑reviewable decisions.............. 198

415........................ Tribunal powers on review of Part 7‑reviewable decisions 198

416........................ Multiple review applications—consideration of information 199

417........................ Minister may substitute more favourable decision.......... 199

418........................ Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions             201

Division 3—Part 7‑reviewable decisions: Tribunal powers                 202

420........................ Tribunal’s way of operating............................................ 202

420B...................... Guidance decisions......................................................... 202

Division 4—Part 7‑reviewable decisions: conduct of review              203

422B...................... Exhaustive statement of natural justice hearing rule........ 203

423........................ Documents to be given to the Tribunal........................... 203

423A..................... How Tribunal is to deal with new claims or evidence..... 203

424........................ Tribunal may seek information....................................... 204

424AA.................. Information and invitation given orally by Tribunal while applicant appearing        204

424A..................... Information and invitation given in writing by Tribunal. 205

424B...................... Requirements for written invitation etc........................... 206

424C...................... Failure to give information, comments or response in response to written invitation               207

425........................ Tribunal must invite applicant to appear.......................... 208

425A..................... Notice of invitation to appear.......................................... 208

426........................ Applicant may request Tribunal to call witnesses........... 208

426A..................... Failure of applicant to appear before Tribunal................. 209

426B...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant          211

427........................ Powers of the Tribunal etc.............................................. 213

428........................ Tribunal’s power to take evidence.................................. 214

429........................ Review to be in private................................................... 214

429A..................... Oral evidence by telephone etc........................................ 215

Division 5—Part 7‑reviewable decisions: Tribunal decisions             216

430........................ Tribunal’s decision and written statement....................... 216

430A..................... Notifying parties of Tribunal’s decision (decision not given orally)        217

430D..................... Tribunal’s decision given orally...................................... 218

431........................ Identifying information not to be published.................... 220

Division 6—Part 7‑reviewable decisions: offences                                   221

432........................ Failure to comply with summons.................................... 221

433........................ Refusal to be sworn or to answer questions................... 221

Division 7—Part 7‑reviewable decisions: miscellaneous                       223

437........................ Restrictions on disclosure of certain information etc....... 223

438........................ Tribunal’s discretion in relation to disclosure of certain information etc. 223

440........................ Tribunal may restrict publication or disclosure of certain matters             224

Division 7A—Review of Part 7‑reviewable decisions: giving and receiving documents              226

441AA.................. Giving documents by Tribunal where no requirement to do so by section 441A or 441B method          226

441A..................... Methods by which Tribunal gives documents to a person other than the Secretary 227

441B...................... Methods by which Tribunal gives documents to the Secretary                229

441C...................... When a person other than the Secretary is taken to have received a document from the Tribunal            230

441D..................... When the Secretary is taken to have received a document from the Tribunal           232

441EA................... Giving documents by Tribunal—combined applications 232

441F...................... Giving documents etc. to the Tribunal............................ 233

441G..................... Authorised recipient........................................................ 233

Part 7AA—Fast track review process in relation to certain protection visa decisions     235

Division 1—Introduction                                                                                        235

473BA................... Simplified outline of this Part......................................... 235

473BB................... Definitions...................................................................... 236

473BC................... Minister may determine that certain decisions are to be reviewed under this Part    237

473BD................... Minister may issue conclusive certificate in relation to certain decisions  238

Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority             239

473CA................... Referral of fast track reviewable decisions...................... 239

473CB................... Material to be provided to Immigration Assessment Authority                239

473CC................... Review of decision......................................................... 240

Division 3—Conduct of review                                                                            241

Subdivision A—Natural justice requirements                                                 241

473DA.................. Exhaustive statement of natural justice hearing rule........ 241

Subdivision B—Review on the papers                                                               241

473DB................... Immigration Assessment Authority to review decisions on the papers    241

Subdivision C—Additional information                                                          242

473DC................... Getting new information................................................. 242

473DD.................. Considering new information in exceptional circumstances 242

473DE................... Certain new information must be given to referred applicant 243

473DF................... Invitation to give new information or comments in writing or at interview              244

Division 4—Decisions of Immigration Assessment Authority            245

473EA................... Immigration Assessment Authority’s decision and written statement      245

473EB................... Notification of Immigration Assessment Authority’s decision                246

473EC................... Certain decisions of the Immigration Assessment Authority to be published          246

Division 5—Exercise of powers and functions by Immigration Assessment Authority                248

473FA................... How Immigration Assessment Authority is to exercise its functions       248

473FB................... Practice directions........................................................... 248

473FC................... Guidance decisions......................................................... 249

Division 6—Disclosure of information                                                            250

473GA.................. Restrictions on disclosure of certain information etc....... 250

473GB................... Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.       250

473GC................... Disclosure of confidential information............................ 251

473GD.................. Immigration Assessment Authority may restrict publication or disclosure of certain matters  253

Division 7—Giving and receiving review documents etc.                     255

473HA.................. Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method............................................................... 255

473HB................... Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary........................................................................................ 256

473HC................... Methods by which Immigration Assessment Authority gives documents to the Secretary      258

473HD.................. When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority.................................................... 259

473HE................... When the Secretary is taken to have received a document from the Immigration Assessment Authority 261

473HF................... Giving documents etc. to the Immigration Assessment Authority           262

473HG.................. Authorised recipient........................................................ 262

Division 8—The Immigration Assessment Authority                              264

473JA.................... The Immigration Assessment Authority......................... 264

473JB.................... Administrative arrangements.......................................... 264

473JC.................... Appointment of Senior Reviewer................................... 265

473JD.................... Acting Senior Reviewer.................................................. 265

473JE.................... Staff................................................................................ 265

473JF.................... Delegation....................................................................... 265

Part 8—Judicial review                                                                                                  266

Division 1—Privative clause                                                                                 266

474........................ Decisions under Act are final.......................................... 266

Division 2—Jurisdiction and procedure of courts                                    269

474A..................... Definition of AAT Act migration decision....................... 269

475........................ This Division not to limit section 474............................. 270

476........................ Jurisdiction of the Federal Circuit Court......................... 270

476A..................... Limited jurisdiction of the Federal Court........................ 271

476B...................... Remittal by the High Court............................................. 273

477........................ Time limits on applications to the Federal Circuit Court. 273

477A..................... Time limits on applications to the Federal Court............. 274

478........................ Persons who may make application................................ 275

479........................ Parties to review............................................................. 276

480........................ Intervention by Attorney‑General................................... 276

481........................ Operation etc. of decision............................................... 276

482........................ Changing person holding, or performing the duties of, an office             277

484........................ Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court       277

Part 8A—Restrictions on court proceedings                                                     278

486A..................... Time limit on applications to the High Court for judicial review              278

486AA.................. Intervention by Attorney‑General................................... 279

486AB................... Operation etc. of decision............................................... 279

486B...................... Multiple parties in migration litigation............................ 279

486C...................... Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court........................................................................................ 281

486D..................... Disclosing other judicial review proceedings.................. 282

Part 8B—Costs orders where proceedings have no reasonable prospect of success        284

486E...................... Obligation where there is no reasonable prospect of success 284

486F...................... Cost orders..................................................................... 284

486G..................... Person must be given reasonable opportunity to argue against costs order              285

486H..................... Limited waiver of legal professional privilege................ 286

486I....................... Lawyer’s certification..................................................... 286

486J....................... Part does not limit other powers to order costs against third parties         287

486K...................... Definitions...................................................................... 287

Part 8C—Reports on persons in detention for more than 2 years      288

486L...................... What is the detention reporting start time for a person?. 288

486M..................... What is a detention reporting time for a person?............ 288

486N..................... Secretary’s obligation to report to Commonwealth Ombudsman             288

486O..................... Commonwealth Ombudsman to give Minister assessment of detention arrangements            289

486P...................... Minister to table statement from Commonwealth Ombudsman                290

486Q..................... Application of Ombudsman Act 1976............................ 290

Part 8D—Civil penalties                                                                                                 291

Division 1—Obtaining a civil penalty order                                                 291

486R...................... Civil penalty orders......................................................... 291

486S...................... Additional rules relating to the sponsorship civil penalty provisions       292

486T...................... Civil enforcement of penalty........................................... 293

486U..................... Conduct contravening more than one civil penalty provision 293

486V..................... Multiple contraventions.................................................. 294

486W..................... Proceedings may be heard together................................. 294

486X..................... Civil evidence and procedure rules for civil penalty orders 294

486Y..................... Requirement for persons to assist in applications for civil penalty orders                294

Division 2—Civil proceedings and criminal proceedings                      296

486Z...................... Civil proceedings after criminal proceedings.................. 296

486ZA................... Criminal proceedings during civil proceedings............... 296

486ZB................... Criminal proceedings after civil proceedings.................. 296

486ZC................... Evidence given in civil proceedings not admissible in criminal proceedings            297

Division 3—Miscellaneous                                                                                     298

486ZD................... Ancillary contravention of civil penalty provisions......... 298

486ZE.................... Mistake of fact................................................................ 298

486ZF.................... State of mind................................................................... 299

486ZG................... Civil double jeopardy...................................................... 299

Part 8E—Investigation powers relating to certain offences and provisions           300

Division 1—Preliminary                                                                                          300

487A..................... Definitions...................................................................... 300

Division 2—Requiring persons to give information or produce documents        303

487B...................... Secretary or Australian Border Force Commissioner may require a person to give information or produce a document........................................................................ 303

487C...................... Self‑incrimination........................................................... 304

Division 3—Search warrants                                                                               305

Subdivision A—Search powers                                                                           305

487D..................... Authorised officer may enter premises by consent or under a search warrant          305

487E...................... Search powers of authorised officers.............................. 305

487F...................... Powers relating to electronic equipment.......................... 306

487G..................... Seizing evidence of the contravention of related provisions etc.               307

487H..................... Persons assisting authorised officers.............................. 308

487J....................... Use of force in executing a search warrant..................... 309

Subdivision B—Powers of authorised officers to ask questions and seek production of documents        309

487K...................... Authorised officer may ask questions and seek production of documents               309

Subdivision C—Obligations and incidental powers of authorised officers 310

487L...................... Consent........................................................................... 310

487M..................... Announcement before entry under search warrant.......... 310

487N..................... Authorised officer to be in possession of search warrant 311

487P...................... Details of search warrant etc. to be given to occupier..... 311

487Q..................... Completing execution of search warrant after temporary cessation          312

487R...................... Completing execution of search warrant stopped by court order              313

487S...................... Expert assistance to operate electronic equipment........... 314

487T...................... Compensation for damage to electronic equipment......... 315

Subdivision D—Occupier’s rights and responsibilities                                 316

487U..................... Occupier entitled to observe execution of search warrant 316

487V..................... Occupier to provide authorised officer with facilities and assistance        316

Subdivision E—General provisions relating to seizure                               317

487W..................... Copies of seized things to be provided........................... 317

487X..................... Receipts for seized things............................................... 318

487Y..................... Return of seized things................................................... 318

487Z...................... Issuing officer may permit a seized thing to be retained.. 319

487ZA................... Disposal of seized things................................................ 320

487ZB................... Compensation for acquisition of property....................... 320

Subdivision F—Issue of search warrants                                                         321

487ZC................... Issue of search warrants................................................. 321

487ZD................... Search warrants by telephone, fax etc............................. 322

487ZE.................... Authority of search warrant............................................ 324

487ZF.................... Offence relating to search warrants by telephone, fax etc. 324

Subdivision G—Identity cards                                                                            325

487ZG................... Identity cards.................................................................. 325

Subdivision H—Powers of issuing officers                                                      326

487ZH................... Powers of issuing officers.............................................. 326

Part 9—Miscellaneous                                                                                                     327

Division 1—Bogus documents                                                                              327

487ZI..................... Prohibition on, and forfeiture of, bogus documents........ 327

487ZJ.................... Seizure of bogus documents........................................... 327

487ZK................... Document condemned as forfeited.................................. 328

487ZL.................... Dealing with a document after it is condemned as forfeited 329

Division 2—Other                                                                                                       330

487........................ Liability for identification tests........................................ 330

488........................ Tampering with movements records............................... 330

488A..................... Giving information to other relevant agencies................. 332

488AA.................. Things seized under Crimes Act search warrant and information about such things                332

488B...................... Authorisation to disclose information to an officer......... 333

489........................ Notified data bases.......................................................... 334

490........................ Identification card to be deemed to continue to be in a form approved by the Minister            335

492........................ Commencement of prosecutions..................................... 335

493........................ Conduct of directors, employees and agents................... 335

494........................ Jurisdiction of courts...................................................... 337

494AA.................. Bar on certain legal proceedings relating to unauthorised maritime arrivals             338

494AB................... Bar on certain legal proceedings relating to transitory persons 339

494A..................... Giving documents by Minister where no requirement to do so by section 494B method        340

494B...................... Methods by which Minister gives documents to a person 341

494C...................... When a person is taken to have received a document from the Minister  343

494D..................... Authorised recipient........................................................ 345

495........................ Minister may approve forms........................................... 346

495A..................... Minister may arrange for use of computer programs to make decisions etc.            346

495B...................... Minister may substitute more favourable decisions for certain computer‑based decisions       347

496........................ Delegation....................................................................... 347

497........................ Delegate not required to perform certain administrative tasks  348

498........................ Exercise of powers under Act......................................... 349

499........................ Minister may give directions........................................... 349

500........................ Review of decision......................................................... 349

500A..................... Refusal or cancellation of temporary safe haven visas.... 355

501........................ Refusal or cancellation of visa on character grounds...... 359

501A..................... Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)................................................. 365

501B...................... Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)................................................................................... 367

501BA................... Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA       367

501C...................... Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) 368

501CA................... Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)................................................................. 370

501D..................... Refusal or cancellation of visa—method of satisfying Minister that person passes the character test      372

501E...................... Refusal or cancellation of visa—prohibition on applying for other visas 372

501F...................... Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas          373

501G..................... Refusal or cancellation of visa—notification of decision 374

501H..................... Refusal or cancellation of visa—miscellaneous provisions 376

501HA.................. Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas........................................................................................ 376

501J....................... Refusal or cancellation of protection visa—Minister may substitute more favourable decision               376

501K...................... Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal  378

501L...................... Disclosure of information to the Minister....................... 378

502........................ Minister may decide in the national interest that certain persons are to be excluded persons    381

503........................ Exclusion of certain persons from Australia................... 381

503A..................... Protection of information supplied by law enforcement agencies or intelligence agencies       382

503B...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non‑disclosure orders..................................................... 386

503C...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non‑disclosure orders..................................................... 391

503D..................... Details of gazetted agency to be treated as protected information             394

503E...................... Validation of decisions................................................... 394

504........................ Regulations..................................................................... 395

505........................ Regulations about visa criteria........................................ 399

506........................ Regulations about passenger cards................................. 399

506A..................... Regulations may provide for infringement notices.......... 400

507........................ Marital or relationship status........................................... 400

The Schedule—Acts relating to immigration and deportation repealed 402

Endnotes                                                                                                                                  403

Endnote 1—About the endnotes                                                                          403

Endnote 2—Abbreviation key                                                                              405

Endnote 3—Legislation history                                                                           406

Endnote 4—Amendment history                                                                         439

Endnote 5—Miscellaneous                                                                                     517


Part 2Arrival, presence and departure of persons

Division 14Recovery of costs from certain persons

262  Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons

             (1)  A person who:

                     (a)  is, or has been, detained under section 189; and

                     (b)  was on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against this Act or against a prescribed law in force in the Commonwealth or in a State or Territory, being a law relating to the control of fishing; and

                   (ba)  is convicted of the offence;

and the master, owner, agent and charterer of the vessel on which the person travelled to Australia, are, jointly and severally, liable to pay the Commonwealth:

                     (c)  the amount applicable to the person under subsection (2) for the cost of keeping and maintaining the person while the person is in immigration detention; and

                     (d)  the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and

                     (e)  the cost of transporting the person, and a person holding the person, between places of immigration detention; and

                      (f)  if the person is returned to the vessel or another vessel—the cost of transporting the person, and a person holding the person, from the place of immigration detention to the vessel or that other vessel; and

                     (g)  if the person is, or is to be, removed from Australia at the expense of the Commonwealth—the cost of that removal (including the cost of transporting a person holding the person).

             (2)  The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.

             (3)  An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.

             (4)  To avoid doubt, the liability to pay the Commonwealth an amount under subsection (1) may be enforced:

                     (a)  at the time the person is convicted of an offence mentioned in paragraph (1)(b); or

                     (b)  after the person has served the whole or a part of any sentence imposed upon the person because of his or her conviction of an offence mentioned in paragraph (1)(b).

263  Secretary or Australian Border Force Commissioner able to issue notice of debt

                   If:

                     (a)  a person is liable to pay to the Commonwealth an amount under section 262; and

                     (b)  the Secretary or Australian Border Force Commissioner gives written notice to the person giving particulars of the liability and stating that the Secretary or Australian Border Force Commissioner requires payment of a specified amount not exceeding that amount;

the specified amount is a debt recoverable by the Commonwealth from the person:

                     (c)  in a court of competent jurisdiction; or

                     (d)  by garnishee notice under section 264.

264  Garnishee notice

             (1)  If an amount (debt) is a debt recoverable from a person (debtor) by the Commonwealth under section 263 or 265, the Secretary or Australian Border Force Commissioner may by written notice given to another person:

                     (a)  from whom any money is due or accruing, or may become due, to the debtor; or

                     (b)  who holds, or may later hold, money for or on account of the debtor; or

                     (c)  who holds, or may later hold, money on account of some other person for payment to the debtor; or

                     (d)  who has authority from some other person to pay money to the debtor;

require the person to whom the notice is given to pay to the Commonwealth:

                     (e)  an amount specified in the notice, not exceeding the debt or the amount of the relevant money; or

                      (f)  such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is paid.

             (2)  The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in it, not being a time before:

                     (a)  the relevant money becomes due or is held; or

                     (b)  the end of the period of 14 days after the notice is given.

             (3)  If the debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the debtor.

             (4)  A person who makes a payment to the Commonwealth in compliance with the notice is taken to have made the payment under the authority of the person who owes the debt to the Commonwealth and of any other person concerned.

             (5)  If, after the notice is given to a person, an amount is paid by another person in reduction or satisfaction of the debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

             (6)  If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand, even though the condition has not been fulfilled.

265  Debt from failure to comply with garnishee notice

             (1)  If a person (garnishee debtor):

                     (a)  is given a notice under section 264 in respect of a debt; and

                     (b)  fails to comply with the notice to the extent that the garnishee debtor is capable of complying with it;

then the amount of the debt outstanding is recoverable from the garnishee debtor by the Commonwealth by:

                     (c)  legal proceedings in a court of competent jurisdiction; or

                     (d)  a garnishee notice under section 264.

             (2)  The reference in subsection (1) to the amount of the debt outstanding is a reference to whichever is the lesser of:

                     (a)  as much of the amount required by the notice under section 264 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or

                     (b)  as much of the debt due at the time when the notice was given as remains due from time to time.

             (3)  If the Commonwealth recovers:

                     (a)  the whole or a part of the debt due by the garnishee debtor; or

                     (b)  the whole or a part of the debt due by the debtor (within the meaning of section 264);

then:

                     (c)  both debts are reduced by the amount that the Commonwealth has so recovered; and

                     (d)  the amount specified in the notice under section 264 is taken to be reduced by the amount so recovered.

266  Future debts

                   For the purposes of this Division, an amount is a future debt in relation to a person if the Secretary or Australian Border Force Commissioner believes on reasonable grounds that the person will, under section 262, become liable to pay the amount to the Commonwealth.

267  Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts

             (1)  If there is a future debt in relation to a person (future debtor), the Secretary or Australian Border Force Commissioner may by written notice given to another person:

                     (a)  from whom any money is due or accruing, or may become due, to the future debtor; or

                     (b)  who holds, or may later hold, money for or on account of the future debtor; or

                     (c)  who holds, or may later hold, money on account of some other person for payment to the future debtor; or

                     (d)  who has authority from some other person to pay money to the future debtor;

require the other person to retain for the period, not exceeding 28 days, specified in that notice:

                     (e)  an amount specified in the notice, not exceeding the future debt or the amount of the relevant money; or

                      (f)  such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the future debtor until that debt is paid.

             (2)  If the future debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the future debtor.

             (3)  If, after the notice is given to a person, an amount is paid by another person in respect of the future debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

             (4)  If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand even though the condition has not been fulfilled.

268  Application of Division to the Crown

             (1)  This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

             (2)  For the purposes of this Division, a notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, respectively, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be.

Division 14AMonitoring compliance with student visa conditions

Subdivision APreliminary

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 BNotices requiring information and documents

268BA  Production notices

             (1)  This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

             (2)  The Secretary or Australian Border Force Commissioner may give the individual a written notice requiring him or her to:

                     (a)  give any information or documents relevant to the visa monitoring purpose to an authorised officer; or

                     (b)  show any such documents to an authorised officer; or

                     (c)  make copies of any such documents and give the copies to an authorised officer.

Note:          The Secretary or Australian Border Force Commissioner may also give the individual an attendance notice: see section 268BD.

             (3)  If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

             (4)  The individuals who may be given a production notice are:

                     (a)  an officer or employee of an education provider; or

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (5)  A production notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BB  Contents of the production notice

             (1)  A production notice must:

                     (a)  state that it is given under section 268BA; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; and

                     (c)  state how and by when the information or documents must be given or shown.

             (2)  In so far as the notice covers information or documents:

                     (a)  that relate to any extent to the calendar year in which the notice is given; and

                     (b)  that are required to be given or shown on the premises where they are currently located;

the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.

             (3)  In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

268BC  Serving production notices

             (1)  The Secretary or Australian Border Force Commissioner must give a production notice to an individual:

                     (a)  by delivering it to the individual personally; or

                     (b)  by:

                              (i)  leaving it at the address of the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner; and

                             (ii)  taking reasonably practicable action to draw the individual’s attention to the notice; or

                     (c)  by sending it by ordinary or any other class of pre‑paid post to the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner.

             (2)  However, if the Secretary or Australian Border Force Commissioner uses the method in paragraph (1)(c), the time mentioned in paragraph 268BB(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

Note:          Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.

268BD  Attendance notices

             (1)  This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

             (2)  The Secretary or Australian Border Force Commissioner may give the individual written notice requiring the individual to attend before an authorised officer and answer questions about the matter.

Note:          The Secretary or Australian Border Force Commissioner may also give the individual a production notice: see section 268BA.

             (3)  The individuals who may be given an attendance notice are:

                     (a)  an officer or employee of an education provider; or

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (4)  An attendance notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BE  Contents of attendance notice

             (1)  An attendance notice must:

                     (a)  state that it is given under section 268BD; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; and

                     (c)  state where and when the individual is to attend.

The time mentioned in paragraph (c) must be at least 14 days after the notice is given.

             (2)  An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.

268BF  Scales of expenses

                   The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Subdivision.

268BG  Reasonable compensation for giving copies

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BH  Offence: failing to comply with a notice

             (1)  A person who refuses or fails to comply with a production or attendance notice commits an offence.

Penalty:  Imprisonment for 6 months.

             (2)  However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

268BI  Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice commits an offence.

Penalty:  Imprisonment for 12 months.

268BJ  Offence: giving false or misleading document

             (1)  A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice, commits an offence.

Penalty:  Imprisonment for 12 months.

             (2)  However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

268BK  Information and documents that incriminate a person

             (1)  A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

             (2)  However, if the person is an individual:

                     (a)  the information, document or answer to the question; or

                     (b)  any other information, document or thing obtained as a direct or indirect result of complying with a notice;

is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 268BI or 268BJ.

268BL  Copies of documents

                   An authorised officer, or another officer with an authorised officer’s permission, may:

                     (a)  inspect a document given or shown to the authorised officer under this Subdivision; and

                     (b)  make and retain copies of, or take and retain extracts from, such a document; and

                     (c)  retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BM  Officer may retain documents

             (1)  An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  However, the document must not be retained for longer than 60 days after the authorised officer was given the document.

Note:          The authorised officer may apply to retain the document for a further period: see section 268BP.

268BN  Owner of document must be given copy

             (1)  If an officer retains a document under section 268BM, then the Secretary or Australian Border Force Commissioner must as soon as practicable:

                     (a)  certify a copy of the document to be a true copy; and

                     (b)  give the copy to the person (the owner) otherwise entitled to possession of the document.

             (2)  The certified copy must be received in all courts and tribunals as evidence as if it had been the original.

             (3)  Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the Secretary or Australian Border Force Commissioner thinks appropriate.

268BO  Retaining documents

             (1)  This section applies 60 days after a document is given to an authorised officer under this Subdivision.

             (2)  The authorised officer must take reasonable steps to return the document to the person who gave the officer the document or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised officer does not have to take those steps if:

                     (a)  the authorised officer may retain the document because of an order under section 268BQ; or

                     (b)  the authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.

268BP  Officer may apply to magistrate or tribunal member for a further period

             (1)  An authorised officer given a document under this Subdivision, or another officer who is currently retaining such a document, may apply to a magistrate or tribunal member for an order that the officer may retain the document for a further period.

             (2)  The application must be made before the end of:

                     (a)  60 days after the document was given to the authorised officer; or

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 268BQ.

             (3)  Before making the application, the officer must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

268BQ  Magistrate or tribunal member may order retention for further period

             (1)  The magistrate or tribunal member may order that the officer who made the application under section 268BP may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the officer to retain it:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the officer may retain the document.

Subdivision CSearching education providers’ premises

268CA  Authorised officer may enter premises for a visa monitoring purpose

             (1)  An authorised officer may for a visa monitoring purpose:

                     (a)  enter any premises:

                              (i)  occupied by an education provider for the purposes of providing courses of education or of training; or

                             (ii)  at which it is reasonable to believe there might be a thing belonging to or possessed by an education provider, or an activity conducted by or with the consent of the provider, that is relevant to a visa monitoring purpose (whether or not those premises are occupied by the provider); and

                     (b)  exercise the monitoring powers set out in section 268CI.

             (2)  An authorised officer is not authorised to enter premises under subsection (1) unless:

                     (a)  the occupier of the premises has consented to the entry and the officer has shown his or her identity card if requested by the occupier; or

Note:       Section 268CC sets out the requirements for obtaining the occupier’s consent.

                     (b)  the entry is made under a monitoring warrant.

Note:       Monitoring warrants are issued under section 268CE or 268CZD.

             (3)  The powers in this Subdivision may be exercised even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268CB  Being on premises with consent

             (1)  An authorised officer may enter premises under section 268CA with the consent of the occupier of the premises at any reasonable time of the day or night.

             (2)  However, the authorised officer must leave the premises if the occupier asks the officer to do so.

268CC  Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 268CA(2)(a), the authorised officer must inform the person that he or she may refuse consent.

             (2)  An entry of an authorised officer with the consent of a person is not lawful unless the person voluntarily consents to the entry.

268CD  Authorised officer may apply for monitoring warrant

             (1)  An authorised officer may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1).

Note:          Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 268CZD.

             (2)  The officer must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

268CE  Magistrate or tribunal member may issue monitoring warrant

                   The magistrate or tribunal member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.

268CF  Magistrate or tribunal member may require more information

             (1)  The magistrate or tribunal member may require an authorised officer or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.

             (2)  The information may be given either orally or by affidavit.

             (3)  The magistrate or tribunal member must not issue the warrant until the officer or other person has given the required information.

268CG  Contents of monitoring warrant

             (1)  A monitoring warrant must:

                     (a)  authorise one or more authorised officers:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers under section 268CI in relation to the premises; and

                     (b)  state whether the entry is authorised at any time of the day or night or during specified hours of the day or night; and

                     (c)  state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and

                     (d)  state the purpose for which the warrant is issued; and

                     (e)  state that the warrant is issued under section 268CE.

             (2)  The authorised officers do not have to be named in the warrant.

268CH  Use of reasonable force and assistance

                   An authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising the powers under section 268CI.

268CI  Monitoring powers of authorised officers

             (1)  For the purposes of this Subdivision, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 268CA:

                     (a)  to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

                     (b)  to examine any such thing;

                     (c)  to examine any activity that is conducted on the premises by, or with the consent of, the education provider that might be relevant to a visa monitoring purpose;

                     (d)  to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

                     (e)  to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

                      (f)  to take extracts from or make copies of any such document;

                     (g)  to take onto the premises any equipment and materials that the authorised officer requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers in subsections (2), (3) and (5).

             (2)  For the purposes of this Subdivision, the monitoring powers include the power to operate equipment that is on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information belonging to the education provider that is relevant to a visa monitoring purpose.

             (3)  For the purposes of this Division, the monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

                     (a)  to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;

                     (b)  to operate such facilities to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier (as appropriate);

                     (c)  to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

             (4)  The powers mentioned in subsections (2) and (3) must be exercised in accordance with sections 268CO, 268CP and 268CQ.

             (5)  If an authorised officer, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code, the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.

268CJ  Authorised officer on premises with consent may ask questions

                   An authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:

                     (a)  ask the occupier to:

                              (i)  answer any questions that are relevant to a visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer that is relevant to the matter; or

                     (b)  ask any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note:          A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CK  Authorised officer on premises under warrant may ask questions

                   An authorised officer who is authorised to enter premises by a monitoring warrant may:

                     (a)  require the occupier of the premises to:

                              (i)  answer any questions that are relevant to a visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer that is relevant to a visa monitoring purpose; or

                     (b)  require any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note 1:       A person could commit an offence if the person fails to comply with a requirement under this section: see section 268CL.

Note 2:       A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CL  Offence: failure to answer question

             (1)  A person commits an offence if the person refuses or fails to comply with a requirement under section 268CK (officer on premises under warrant may ask questions).

Penalty:  Imprisonment for 6 months.

             (2)  However, a person does not commit an offence if answering the question or giving or showing the document might tend to incriminate the person or expose the person to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

268CM  Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK commits an offence.

Penalty:  Imprisonment for 12 months.

268CN  Offence: giving or showing documents that are false or misleading in material particulars

             (1)  A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK, commits an offence.

Penalty:  Imprisonment for 12 months.

             (2)  However, the person does not commit an offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

268CO  Use of electronic equipment in exercising monitoring powers

                   In order to exercise monitoring powers, an authorised officer or a person assisting may operate electronic equipment on the premises if he or she reasonably believes that this can be done without damaging the equipment or data recorded on the equipment.

Note:          Compensation may be payable in certain circumstances if the equipment or data is damaged: see section 268CY.

268CP  Use of electronic equipment by experts

             (1)  This section applies if the authorised officer or a person assisting reasonably believes that:

                     (a)  there is on the premises information belonging to the education provider concerned:

                              (i)  that is relevant to a visa monitoring purpose; and

                             (ii)  that might be accessible by operating electronic equipment that is on the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under subsection (2), the information might be destroyed, altered or otherwise interfered with.

             (2)  The authorised officer or person assisting may do whatever is necessary to secure the equipment.

             (3)  Before doing so, the authorised officer or person assisting must give notice to the occupier of the premises of:

                     (a)  his or her intention to secure equipment; and

                     (b)  the fact that the equipment may be secured for up to 24 hours.

             (4)  The equipment may only be secured until the earlier of:

                     (a)  24 hours later; or

                     (b)  the equipment being operated by the expert.

268CQ  Extension of period

             (1)  If an authorised officer or a person assisting reasonably believes that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate or tribunal member for an extension of the period.

             (2)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

             (3)  The provisions of this Subdivision relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

268CR  Powers without warrant in emergency situations

             (1)  This section applies when an authorised officer is on premises under section 268CA if the officer reasonably suspects that:

                     (a)  a thing relevant to an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code is on the premises; and

                     (b)  it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

                     (c)  it is necessary to exercise the power without the authority of a monitoring warrant because the circumstances are so serious and urgent.

             (2)  The authorised officer may:

                     (a)  search the premises, and any receptacle on the premises, for the thing; and

                     (b)  seize the thing if he or she finds it there; and

                     (c)  exercise the powers mentioned in subsections 268CI(2) and (3) in relation to the thing.

268CS  Retaining seized things

             (1)  This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:

                     (a)  the reason for the thing’s seizure no longer exists or it is decided that the thing is not to be used in evidence; or

                     (b)  the period of 60 days after the thing’s seizure ends.

             (2)  The authorised officer must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised officer does not have to take those steps if:

                     (a)  in a paragraph (1)(b) case:

                              (i)  proceedings in respect of which the thing might afford evidence have been instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                             (ii)  the authorised officer may retain the thing because of an order under section 268CU; or

                     (b)  in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or

                     (c)  the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

268CT  Authorised officer may apply for a thing to be retained for a further period

             (1)  This section applies if an authorised officer has seized a thing under section 268CR and proceedings in respect of which the thing might afford evidence have not commenced before the end of:

                     (a)  60 days after the seizure; or

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 268CU.

             (2)  The authorised officer may apply to a magistrate or tribunal member for an order that the officer may retain the thing for a further period.

             (3)  Before making the application, the authorised officer must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

268CU  Magistrate or tribunal member may order that thing be retained

             (1)  The magistrate or tribunal member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the officer to do so:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the officer may retain the thing.

268CV  Occupier to provide authorised officer with all facilities and assistance

             (1)  The occupier of the premises to which a monitoring warrant relates must provide the authorised officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if the person contravenes subsection (1).

Penalty for contravention of this subsection:        10 penalty units.

268CW  Announcement before entry

                   An authorised officer executing a monitoring warrant must, before entering premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give a person on the premises (if there is one) an opportunity to allow entry to the premises.

268CX  Copy of monitoring warrant to be given to occupier before entry

             (1)  If a monitoring warrant is being executed on premises and the occupier of the premises is present, the authorised officer must make a copy of the warrant available to the occupier.

             (2)  The authorised officer must identify himself or herself to that person.

268CY  Compensation for damage to electronic equipment or data

             (1)  This section applies if:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 268CO; or

                     (b)  the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

                     (c)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                     (d)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

268CZ  Occupier entitled to be present during execution of monitoring warrant

             (1)  If a monitoring warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the occupier impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

268CZA  Identity cards

             (1)  For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary or Australian Border Force Commissioner. It must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person holds or held an identity card for the purposes of this Subdivision; and

                     (b)  the person ceases to be an authorised officer for all purposes under this Act; and

                     (c)  the person does not, as soon as is practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner.

Penalty:  1 penalty unit.

             (3)  This offence is one of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  However, the person does not commit the offence if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

             (5)  An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.

268CZB  Authorised officer must produce identity card on request

                   An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:

                     (a)  the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and

                     (b)  the authorised officer fails to comply with the request.

268CZC  Officer may apply for warrants by telephone etc.

             (1)  An authorised officer may apply to a magistrate or tribunal member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.

             (2)  The magistrate or tribunal member may require communication by voice to the extent that it is practicable in the circumstances.

             (3)  Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.

             (4)  However, the officer may make the application before the information has been sworn or affirmed, if necessary.

268CZD  Magistrate or tribunal member may grant warrant by telephone etc.

             (1)  Before issuing the warrant the magistrate or tribunal member must:

                     (a)  consider the information prepared under subsection 268CZC(3); and

                     (b)  receive any further information that the magistrate or tribunal member may require about the grounds on which the warrant is being sought.

             (2)  The magistrate or tribunal member may issue the warrant if the magistrate or tribunal member is satisfied:

                     (a)  that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and

                     (b)  that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.

268CZE  Procedure for issuing warrant by telephone etc.

             (1)  If the magistrate or tribunal member issues a monitoring warrant under section 268CZD, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or tribunal member would have issued if the application had been made under section 268CD.

             (2)  The magistrate or tribunal member must also:

                     (a)  inform the authorised officer of:

                              (i)  the terms of the warrant; and

                             (ii)  the day and time when it was signed; and

                            (iii)  the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and

                     (b)  record on the warrant the reasons for issuing it.

             (3)  The authorised officer must:

                     (a)  complete a form of warrant in the terms given to the authorised officer by the magistrate or tribunal member; and

                     (b)  write on it the magistrate’s or tribunal member’s name and the day and time when the warrant was signed.

268CZF  Procedure after telephone warrant ceases or is executed

             (1)  An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or tribunal member who signed the monitoring warrant:

                     (a)  the form of warrant completed by the authorised officer; and

                     (b)  the information duly sworn or affirmed in connection with the warrant.

             (2)  The form of warrant and information must be sent by the end of the day after the earlier of:

                     (a)  the day on which the warrant ceases to have effect; or

                     (b)  the day on which the warrant is executed.

             (3)  The magistrate or tribunal member must:

                     (a)  attach the monitoring warrant signed by the magistrate or tribunal member under section 268CZE to the form of warrant and information; and

                     (b)  deal with the documents in the same way that the magistrate or tribunal member would have dealt with them if the application for the warrant had been made under section 268CD.

268CZG  Form of warrant authorises exercise of power

                   The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.

268CZH  Court to assume that exercise of power not authorised by telephone etc. warrant

                   A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant if the monitoring warrant signed by the magistrate or tribunal member under section 268CZE is not produced in evidence.

Division 15General

269  Securities

             (1)  An authorized officer may, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:

                     (a)  by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or

                     (b)  in accordance with a form of security approved by the Minister.

          (1A)  The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:

                     (a)  the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and

                     (b)  the officer has indicated those conditions to the applicant.

             (2)  A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.

             (3)  Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.

             (4)  If it appears to the court that a non‑compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:

                     (a)  an extension of time or other concession;

                     (b)  any consent to, or acquiescence in, a previous non‑compliance with a condition; or

                     (c)  any failure to bring suit against the subscribers upon the occurrence of a previous non‑compliance with the condition.

270  Reports of absences of crews of vessels

             (1)  Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report and:

                     (a)  if the report states that the member left the vessel with leave—that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or

                     (b)  if the report states that the member left the vessel without leave—that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port.

             (2)  Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and:

                     (a)  at any time during the vessel’s stay at that port, left the vessel without leave; or

                     (b)  at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave;

the report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report.

271  Proof of certain matters

             (1)  In migration proceedings:

                     (a)  official documents of the Commonwealth or of a State or Territory, and letters and telegrams, or copies of letters and telegrams, and affidavits produced out of official custody and purporting to have been sent or made by an officer, are, if they contain information or statements upon matters relevant to the proceedings, admissible as evidence of that information or of the matters stated; and

                     (b)  a certificate signed by an officer stating that:

                              (i)  at a time, or during a period, specified in the certificate a specified person was, or was not, the holder of, a visa that was in effect; or

                             (ii)  a specified visa was granted subject to specified conditions or to a specified limitation as to period;

                            is prima facie evidence of the matters stated in the certificate; and

                     (c)  the production out of official custody of a document purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is prima facie evidence that the document is such a report; and

                     (d)  a list of passengers in a vessel, or a passenger card relating to a passenger in a vessel, furnished in accordance with the regulations, is prima facie evidence that the person named on the list or card as the operator of the vessel is the operator of the vessel; and

                     (e)  a notation in a person’s passport specifying a proclaimed airport and date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person was immigration cleared on that date; and

                      (f)  a notation in a person’s passport to the effect that the person departed on a specified pre‑cleared flight from a specified foreign country on a specified date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person entered Australia on that pre‑cleared flight; and

                     (g)  for the purpose of proving that a person entered Australia on, or left Australia in, an aircraft (whether or not the person travelled to Australia on a pre‑cleared flight), a certified printout of the relevant movement records is prima facie evidence of the matters contained in the printout; and

                     (h)  for the purpose of proving that a person entered Australia on, or left Australia on, a vessel, a list of any passengers on that vessel, or a passenger card relating to a passenger on that vessel, furnished in accordance with the regulations is admissible in evidence, and production of such a list or passenger card bearing a name that is the same as the name of that person shall be deemed to be proof that that person entered Australia on, or left Australia on, that vessel on the voyage in respect of which the list or passenger card was furnished, unless the contrary is proved; and

                      (i)  for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they:

                              (i)  are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and

                             (ii)  purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia;

                            and any such certificate is prima facie evidence of the matters stated in the certificate; and

                      (j)  evidence that a person who travelled to and entered Australia on board a vessel, when entering, either:

                              (i)  failed to produce to an officer, upon demand by that officer, a passport; or

                             (ii)  produced to an officer a passport that was not an Australian passport;

                            is prima facie evidence that the person was, when entering, a non‑citizen; and

                     (k)  evidence that a non‑citizen who entered Australia on board a vessel failed, when entering, to produce to an officer, upon demand by that officer, evidence of a visa:

                              (i)  that is in effect; and

                             (ii)  that permits the non‑citizen to travel to and enter Australia;

                            is prima facie evidence that the non‑citizen did not, when entering, hold such a visa; and

                      (l)  a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:

                              (i)  at a specified time or during a specified period; and

                             (ii)  in relation to specified outcomes from the operation of that program under an arrangement made under subsection 495A(1);

                            is prima facie evidence of the matters stated in the certificate; and

                    (m)  a certificate signed by an officer stating:

                              (i)  whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person; and

                             (ii)  if the specified computer system was so used—the information about the other specified person that was provided by the system to the user at that time or during that period;

                            is prima facie evidence of the matters stated in the certificate.

Note:          Functioning correctly is defined in subsection (5).

             (2)  In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Territory of Christmas Island, as including official documents of that Territory that were in existence at the commencement of this subsection.

             (3)  In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Coral Sea Islands Territory or the Territory of Cocos (Keeling) Islands, as including official documents of that Territory that were in existence at the commencement of this subsection.

             (4)  In this section:

migration proceedings means:

                     (a)  proceedings in a court (including criminal proceedings):

                              (i)  under this Act, or in relation to an offence against this Act or a contravention of a civil penalty provision; or

                             (ii)  in relation to a deportation order; or

                     (b)  proceedings in the Tribunal for the review of a decision under this Act, including a decision to make a deportation order; or

                     (c)  proceedings in the Immigration Assessment Authority for the review of a fast‑track reviewable decision.

Note:          For offence against this Act, see subsection 5(1).

             (5)  For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:

                     (a)  outcomes from its operation comply with this Act and the regulations; and

                     (b)  those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

272  Migrant centres

             (1)  The Minister may, on behalf of the Commonwealth, cause to be established and maintained premises and places (in this section referred to as migrant centres) for the reception, accommodation or training of non‑citizens.

             (2)  Non‑citizens may be admitted to migrant centres in such circumstances, on such terms and conditions, and subject to the payment of such charges, as the Minister approves.

             (3)  The regulations may make provision for and in relation to the regulation of migrant centres, including provision with respect to the establishment and operation of canteen services in migrant centres, the conduct or control of persons in migrant centres and the removal of persons from migrant centres.

             (4)  Nothing in this section shall be deemed to affect any arrangements made or to be made in relation to, or the carrying on of the business of, the company known as Commonwealth Hostels Limited.

273  Detention centres

             (1)  The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

             (2)  The regulations may make provision in relation to the operation and regulation of detention centres.

             (3)  Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

                     (a)  the conduct and supervision of detainees;

                     (b)  the powers of persons performing functions in connection with the supervision of detainees.

             (4)  In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

274  Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons

             (1)  This section applies to a person who:

                     (a)  is a deportee who has not yet been deported; or

                     (b)  is a removee who has not yet been removed; or

                     (c)  has been refused immigration clearance and has not subsequently been immigration cleared.

             (2)  Where the Secretary or Australian Border Force Commissioner thinks that the issue to a person of a document under subsection (3) relating to another person, being a person to whom this section applies, would facilitate the making of arrangements for the transportation, by aircraft, of the other person from Australia, the Secretary or Australian Border Force Commissioner may give the first‑mentioned person a document under subsection (3) relating to the other person.

             (3)  A document for the purposes of subsection (2):

                     (a)  shall be in the prescribed form;

                     (b)  shall state, to the best of the Secretary’s or Australian Border Force Commissioner’s knowledge, the name and nationality of the person concerned; and

                     (c)  may include such other information as the Secretary or Australian Border Force Commissioner thinks appropriate.

Part 3Migration agents and immigration assistance

Division 1Preliminary

275  Interpretation

                   In this Part, unless the contrary intention appears:

cancellation review applicant means an applicant for:

                     (a)  review of a decision to cancel a visa held by the applicant; or

                     (b)  revocation under section 137L of the cancellation of a visa held by the applicant; or

                     (c)  review of a decision under that section not to revoke such a cancellation.

cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.

high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC.

Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390).

Migration Agents Registration Authority means:

                     (a)  if an appointment of the Institute is in force under section 315—the Institute; or

                     (b)  otherwise—the Minister.

migration procedure means the law, and administrative practice, relating to immigration.

official means:

                     (a)  a person appointed or engaged under the Public Service Act 1999; or

                     (c)  a member of the public service of a State or Territory; or

                     (d)  a member of the staff of a Parliamentarian.

parliamentarian means:

                     (a)  a Senator; or

                     (b)  a Member of the House of Representatives; or

                     (c)  a member of the Parliament of a State; or

                     (d)  a member of the Legislative Assembly of a Territory.

Register means the Register of Migration Agents kept under section 287.

registered migration agent means an individual registered as a migration agent under section 286.

registration application means an application to be registered as a migration agent.

registration application fee means charge imposed by section 4 of the Migration Agents Registration Application Charge Act 1997 on a registration application.

registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.

review authority means:

                     (a)  the the Tribunal in reviewing a Part 5‑reviewable decision; or

                     (b)  the the Tribunal in reviewing a Part 7‑reviewable decision; or

                     (c)  the Immigration Assessment Authority.

276  Immigration assistance

             (1)  For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

                     (a)  preparing, or helping to prepare, the visa application or cancellation review application; or

                     (b)  advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

                     (c)  preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

                     (d)  representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

             (2)  For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

                     (a)  preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

                     (b)  advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

                     (c)  representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

          (2A)  For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

                     (a)  preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or

                    (aa)  preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or

                     (b)  advising the other person about making a request referred to in paragraph (a) or (aa).

             (3)  Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

                     (a)  does clerical work to prepare (or help prepare) an application or other document; or

                     (b)  provides translation or interpretation services to help prepare an application or other document; or

                     (c)  advises another person that the other person must apply for a visa; or

                     (d)  passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

             (4)  A person also does not give immigration assistance in the circumstances prescribed by the regulations.

277  Immigration legal assistance

             (1)  For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:

                     (a)  acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or

                     (b)  represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or

                     (c)  gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

                              (i)  the preparation or lodging of the visa application or cancellation review application;

                             (ii)  proceedings before a review authority in relation to the visa application or cancellation review application;

                            (iii)  the review by a review authority of a decision relating to the visa application or cancellation review application.

             (2)  For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

                     (a)  represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

                     (b)  gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

             (3)  A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

                     (a)  the preparation or lodging of an approved form putting forward the name of a visa applicant; or

                     (b)  the preparation or lodging of an approved form undertaking sponsorship; or

                     (c)  proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or

                     (d)  the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

             (4)  A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person).

             (5)  A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person).

278  Relation by employment

             (1)  For the purposes of this Part, an individual is related by employment to another individual if:

                     (a)  one individual is an employee of the other; or

                     (b)  they are executive officers of the same corporation; or

                     (c)  they are members of the same partnership; or

                     (d)  one individual is an employee of a corporation and the other is:

                              (i)  an employee of the corporation; or

                             (ii)  an executive officer of the corporation; or

                     (e)  one individual is an employee of a partnership and the other is:

                              (i)  an employee of the partnership; or

                             (ii)  a member of the partnership.

Regulations

             (2)  For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.

Expanded meaning of employee

             (3)  In this section:

employee includes a person engaged as a consultant or as an independent contractor.

279  Part VIIC of the Crimes Act 1914 to apply to this Part

             (1)  Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.

             (2)  Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the Migration Agents Registration Authority as if it were a Commonwealth authority for the purposes of that Division.

Division 2Restrictions on giving of immigration assistance and making of immigration representations

280  Restrictions on giving of immigration assistance

             (1)  Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

Penalty:  60 penalty units.

Note:          See also paragraph 504(1)(ja) (which deals with the payment of penalties as an alternative to prosecution).

          (1A)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  This section does not prohibit a parliamentarian from giving immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a lawyer from giving immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (5)  This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5A)  This section does not prevent a close family member of a person from giving immigration assistance to the person.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5B)  This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5C)  This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (6)  This section does not prohibit an individual from giving immigration assistance in his or her capacity as:

                     (a)  a member of a diplomatic mission; or

                     (b)  a member of a consular post; or

                     (c)  a member of an office of an international organisation.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (7)  In this section:

close family member has the meaning given by the regulations.

member of a consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.

member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.

member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act.

281  Restriction on charging fees for immigration assistance

             (1)  Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.

Penalty:  Imprisonment for 10 years.

             (2)  Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.

Penalty:  Imprisonment for 10 years.

             (3)  This section does not prohibit:

                     (a)  a lawyer from asking for or receiving a fee for giving immigration legal assistance; or

                     (b)  a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

282  Restriction on charging fees for immigration representations

             (1)  A person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.

Penalty:  Imprisonment for 10 years.

             (2)  A person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered migration agent.

Penalty:  Imprisonment for 10 years.

             (3)  A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

             (4)  For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:

                     (a)  on behalf of a visa applicant about the application for the visa; or

                     (b)  on behalf of a cancellation review applicant about the cancellation review application; or

                     (c)  on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or

                     (d)  on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or

                     (e)  on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to that person), about the request; or

                      (f)  on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person), about the request.

             (5)  A person does not make immigration representations in the circumstances prescribed by the regulations.

283  False representation that a person is a registered migration agent

             (1)  A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent.

             (2)  A person must not directly or indirectly represent that another person who is not a registered migration agent is such an agent.

Penalty:  Imprisonment for 2 years.

284  Restriction on self‑advertising of the giving of immigration assistance

             (1)  Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance.

Penalty:  Imprisonment for 2 years.

             (2)  This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a lawyer from advertising that he or she gives immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

285  Restriction on other advertising of immigration assistance

             (1)  Subject to this section, a person must not directly or indirectly advertise that another person who is not a registered migration agent gives immigration assistance.

Penalty:  Imprisonment for 2 years.

             (2)  This section does not prohibit a person from advertising that another person who is a parliamentarian gives immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a person from advertising that another person who is a lawyer gives immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit a person from advertising that another person who is an official gives immigration assistance in the course of the official acting as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Division 3Registration 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 3AADisciplining registered migration agents for engaging in vexatious activity

Subdivision ADefinitions

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 BReferral 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 DReview

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 EMaking 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 3ADocuments relating to clients of inactive migration agents and deceased migration agents

306A  Objects of this Division

                   The objects of this Division are:

                     (a)  to ensure that clients of inactive migration agents are not unduly disadvantaged by the agent becoming inactive; and

                     (b)  to ensure that clients of deceased migration agents are not unduly disadvantaged by the death of the agent;

by empowering the Migration Agents Registration Authority to:

                     (c)  obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and

                     (d)  give the originals or copies to the clients concerned.

Note:          An agent becomes inactive as a result of expiry of registration, deregistration, cancellation of registration, suspension of registration, or incapacity (see section 306B).

306B  Inactive migration agents

                   For the purposes of this Division:

                     (a)  if a person ceases to be a registered migration agent because the person’s period of registration expires under section 299:

                              (i)  the person becomes an inactive migration agent at the time of the cessation; and

                             (ii)  the person remains an inactive migration agent until the end of the period of 2 years after the cessation or until the person again becomes a registered migration agent, whichever happens first; and

                     (b)  if, at a person’s request, the Migration Agents Registration Authority deregisters the person under section 302:

                              (i)  the person becomes an inactive migration agent at the time of the deregistration; and

                             (ii)  the person remains an inactive migration agent until the end of the period of 2 years after the deregistration or until the person again becomes a registered migration agent, whichever happens first; and

                     (c)  if the Migration Agents Registration Authority cancels a person’s registration under section 303, 306AG or 306AGAC:

                              (i)  the person becomes an inactive migration agent at the time of the cancellation; and

                             (ii)  the person remains an inactive migration agent for 2 years; and

                     (d)  if the Migration Agents Registration Authority suspends a person’s registration under section 303, 306AG or 306AGAC:

                              (i)  the person becomes an inactive migration agent at the time of the suspension; and

                             (ii)  the person remains an inactive migration agent for the period of the suspension; and

                     (e)  if, while a person is a registered migration agent, the person becomes physically or mentally incapable, for a continuous period of not less than 14 days, of giving immigration assistance:

                              (i)  the person becomes an inactive migration agent at the end of that period of 14 days; and

                             (ii)  the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.

306C  Clients

                   For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:

                     (a)  the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and

                     (b)  if the registered migration agent becomes an inactive migration agent—the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.

306D  Power to obtain documents from inactive migration agent

             (1)  This section applies to a person who is an inactive migration agent if the Migration Agents Registration Authority has reason to believe that:

                     (a)  before becoming an inactive migration agent and while the person was a registered migration agent, the person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the inactive migration agent has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the inactive migration agent is taken to have been given the notice.

306E  Power to obtain documents from representative of deceased inactive migration agent

             (1)  This section applies to the legal personal representative of a deceased person if the deceased person was an inactive migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

                     (a)  before becoming an inactive migration agent and while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the legal personal representative has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

306F  Power to obtain documents from representative of deceased registered migration agent

             (1)  This section applies to the legal personal representative of a deceased person if the deceased person was a registered migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

                     (a)  while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the legal personal representative has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

306G  Reasonable compensation

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a notice under section 306D, 306E or 306F.

306H  Failure to comply with notice

             (1)  A person commits an offence if:

                     (a)  the person is subject to a requirement under section 306D, 306E or 306F; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

306J  Self‑incrimination

             (1)  An individual is not excused from producing a document under section 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  any document so produced; and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of a document so produced;

is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

306K  Migration Agents Registration Authority to give client documents to clients

             (1)  If:

                     (a)  a document is given to the Migration Agents Registration Authority under section 306D by an inactive migration agent; and

                     (b)  the document relates to the affairs of a particular client of the inactive migration agent;

then, as soon as practicable, the Migration Agents Registration Authority must:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

                     (d)  give the client information about how to contact other registered migration agents.

             (2)  If:

                     (a)  a document is given to the Migration Agents Registration Authority under section 306E or 306F by the legal personal representative of:

                              (i)  a deceased inactive migration agent; or

                             (ii)  a deceased registered migration agent; and

                     (b)  the document relates to the affairs of a particular client of the deceased migration agent;

then, as soon as practicable, the Migration Agents Registration Authority must:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

                     (d)  give the client information about how to contact other registered migration agents.

306L  Compensation—constitutional safety‑net

             (1)  If:

                     (a)  apart from this section, the operation of this Division would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  A provision of this Act (other than this Division) that provides for compensation for the acquisition of property does not apply to this Division.

             (4)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Division 4Investigations 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 4ADisciplining former registered migration agents

Subdivision AComplaints 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 BEngaging 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 5Obligations 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 6Migration 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 6ARegistration 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 7Other things

332C  Removing disciplinary details—registered migration agents

             (1)  The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:

                     (a)  any statement relating to the cancellation or suspension of a registered migration agent’s registration;

                     (b)  any statement about the cautioning of such an agent.

Time for removal

             (2)  The Authority must remove the details within the period worked out in accordance with the regulations.

             (3)  The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.

332D  Removing disciplinary details—former registered migration agents

             (1)  The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.

             (2)  The Authority must remove the statement within the period worked out in accordance with the regulations.

332E  Protection from civil proceedings

Complaints about registered migration agents

             (1)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.

Complaints about persons who are not registered migration agents

             (2)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;

                     (c)  the investigation of such a complaint.

Institute etc.

             (3)  The Institute, or an officer or employee of the Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (a)  the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;

                     (b)  the exercise or purported exercise of any power conferred on the Authority under this Part.

Commonwealth etc.

             (4)  None of the following:

                     (a)  the Commonwealth;

                     (b)  the Minister;

                     (c)  an officer;

                     (d)  any other person;

is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (e)  the performance or purported performance of any function conferred on the Minister under this Part;

                      (f)  the exercise or purported exercise of any power conferred on the Minister under this Part.

332F  Disclosure of personal information by the Secretary

             (1)  The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.

             (2)  However, the Secretary may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).

             (4)  In this section:

inactive migration agent has the meaning given by section 306B.

332G  Disclosure of personal information by a review authority

Discretionary disclosure

             (1)  A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.

             (2)  However, a review authority may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).

Mandatory disclosure

             (4)  If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.

Definitions

             (5)  In this section:

inactive migration agent has the meaning given by section 306B.

review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

332H  Giving of notices under this Part

             (1)  If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):

                     (a)  the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and

                     (b)  the time at which the recipient is taken to have been given the notice is the time set out in the table.

 

Giving of notices under this Part

Item

Methods of giving notices

Timing rule

1

Handing the notice to the recipient

When it is handed to the recipient

2

Handing the notice to another person who:

(a) is at the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices; and

(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c) appears to be at least 16 years of age

When it is handed to the other person

3

Dating the notice, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the notice; and

(b) by prepaid post or by other prepaid means; and

(c) to:

(i) the last address for service provided to the Authority by the recipient for the purposes of receiving notices; or

(ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices

(a) if the notice was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the notice; or

(b) in any other case—21 days after the date of the notice

4

Transmitting the notice by:

(a) fax; or

(b) email; or

(c) other electronic means;

to the last fax number, email address or other electronic address, as the case may be, provided to the Authority by the recipient for the purposes of receiving notices

At the end of the day on which the notice is transmitted

             (2)  This section has effect despite any provision in the Electronic Transactions Act 1999.

Part 4Offences relating to decisions under Act

  

334  Offences in relation to false or misleading statements regarding the making of decisions

             (1)  A person commits an offence if:

                     (a)  the person makes a statement; and

                     (b)  the statement is about:

                              (i)  the person’s ability or power; or

                             (ii)  another person’s ability or power;

                            to induce or influence the making of decisions, or of a particular decision, under this Act; and

                     (c)  the statement is false or misleading.

             (2)  A person commits an offence if:

                     (a)  the person makes a statement; and

                     (b)  the statement is about the effect of:

                              (i)  the person’s actions; or

                             (ii)  another person’s actions;

                            on the making of a decision under this Act; and

                     (c)  the statement is false or misleading.

Penalty:  Imprisonment for 2 years.

335  Offence of undertaking, for reward, to cause decisions to be made etc.

                   A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.

Penalty:  Imprisonment for 2 years.

336  Court may order reparation for loss suffered

             (1)  Where:

                     (a)  a person is convicted by a court of an offence against this Part; and

                     (b)  because of that offence, another person has suffered loss;

the court may, in addition to any penalty imposed on the offender, order the offender to make to the other person such reparation (whether by payment of money or otherwise) as the court thinks fit.

             (2)  Where:

                     (a)  a court makes an order for the making of reparation by payment of an amount of money; and

                     (b)  the clerk, or other appropriate officer, of the court signs a certificate specifying:

                              (i)  the amount ordered to be paid; and

                             (ii)  the person by whom the amount is to be paid; and

                            (iii)  the person to whom the amount is to be paid; and

                     (c)  the certificate is filed in a court having civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.

             (3)  The court may not, under subsection (1), order reparation in respect of an amount paid by a person if that amount has been recovered by the person under section 313.

             (4)  If an amount paid by a person could be recovered by the person under section 313, the following provisions apply:

                     (a)  if, under subsection (1), a court orders the person to whom the amount was paid to make reparation to the first person, the court must state in the order whether the reparation ordered includes reparation for the amount paid;

                     (b)  if a court states in an order under subsection (1) that the reparation ordered is or includes reparation for the amount paid, the amount is not recoverable under section 313.

Part 4AObligations relating to identifying information

Division 1Preliminary

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 2Accessing identifying information

336C  Accessing identifying information

             (1)  A person commits an offence if:

                     (a)  the person accesses identifying information; and

                     (b)  the person is not authorised under section 336D to access the identifying information for the purpose for which the person accessed it.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

          (1A)  This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (2)  This section does not apply if the access is through a disclosure that is a permitted disclosure.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

336D  Authorising access to identifying information

             (1)  The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.

             (2)  The Secretary or Australian Border Force Commissioner must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:

                     (a)  one or more of the purposes set out in subsection 5A(3);

                     (b)  disclosing identifying information in accordance with this Part;

                     (c)  administering or managing the storage of identifying information;

                     (d)  making identifying information available to the person to whom it relates;

                     (e)  modifying identifying information to enable it to be matched with other identifying information;

                      (f)  modifying identifying information in order to correct errors or ensure compliance with appropriate standards;

                     (g)  the purposes of:

                              (i)  this Act or an instrument made under this Act; or

                             (ii)  the Australian Citizenship Act 2007 or an instrument made under that Act; or

                            (iii)  the Customs Act 1901 or an instrument made under that Act; or

                            (iv)  any other law of the Commonwealth prescribed by the regulations;

                     (h)  complying with laws of the Commonwealth or the States or Territories.

             (3)  However, the Secretary or Australian Border Force Commissioner must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:

                     (a)  investigating an offence against a law of the Commonwealth or a State or Territory; or

                     (b)  prosecuting a person for such an offence;

if the identifying information in question relates to a personal identifier of a prescribed type.

Division 3Disclosing identifying information

336E  Disclosing identifying information

             (1)  A person commits an offence if:

                     (a)  the person’s conduct causes disclosure of identifying information; and

                     (b)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

          (1A)  This section does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (2)  A permitted disclosure is a disclosure that:

                     (a)  is for the purpose of data‑matching in order to:

                              (i)  identify, or authenticate the identity of, a person; or

                             (ii)  facilitate the processing of persons entering or departing from Australia; or

                            (iii)  identify non‑citizens who have a criminal history or who are of character concern; or

                          (iiia)  identify persons who may be a security concern to Australia or a foreign country; or

                            (iv)  combat document and identity fraud in immigration matters; or

                             (v)  ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or

                            (vi)  inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed, taken or deported from Australia; or

                     (b)  is for the purpose of administering or managing the storage of identifying information; or

                   (ba)  is for the purpose of:

                              (i)  this Act or an instrument made under this Act; or

                             (ii)  the Australian Citizenship Act 2007 or an instrument made under that Act; or

                            (iii)  the Customs Act 1901 or an instrument made under that Act; or

                            (iv)  any other law of the Commonwealth prescribed by the regulations; or

                     (c)  is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or

                     (d)  is for the purpose of making the identifying information in question available to the person to whom it relates; or

                   (da)  is to an agency of the Commonwealth or of a State or Territory in order to verify that a person is an Australian citizen or holds a visa of a particular class; or

                     (e)  takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or

                    (ea)  is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or

                   (eb)  is required by or under a law of the Commonwealth or of a State or Territory; or

                    (ec)  is for the purpose of identifying non‑citizens who have a criminal history or who are of character concern; or

                   (ed)  is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or

                      (f)  is for the purpose of a proceeding, before a court, the Tribunal or another tribunal, or the Immigration Assessment Authority, relating to the person to whom the identifying information in question relates; or

                     (g)  is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or

                    (ga)  is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or

                   (gb)  is for the purposes of the extradition of persons to or from Australia, including the making of, or the consideration of whether to make, a request for extradition; or

                    (gc)  is for the purposes of:

                              (i)  the provision, or proposed provision, of international assistance in criminal matters by the Attorney‑General, or an officer of his or her Department, to a foreign country; or

                             (ii)  the obtaining, or proposed obtaining, of international assistance in criminal matters by the Attorney‑General, or an officer of his or her Department, from a foreign country; or

                     (h)  is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to:

                              (i)  carrying out an identification test; or

                             (ii)  requiring the provision of a personal identifier; or

                   (ha)  is a disclosure of an audio or a video recording for the purposes of:

                              (i)  this Act or the regulations or the Australian Citizenship Act 2007 or the regulations made under that Act; and

                             (ii)  transcribing or translating the recording, or conducting language analysis or accent analysis of the recording; or

                      (i)  takes place with the written consent of the person to whom the identifying information in question relates; or

                      (j)  is authorised by section 336FA; or

                     (k)  is authorised by section 336FC.

             (3)  However, a disclosure is not a permitted disclosure if:

                     (a)  it is a disclosure of identifying information relating to a personal identifier of a prescribed type; and

                     (b)  it is for the purpose of:

                              (i)  investigating an offence against a law of the Commonwealth or a State or Territory; or

                             (ii)  prosecuting a person for such an offence.

336F  Authorising disclosure of identifying information to foreign countries etc.

             (1)  The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:

                     (a)  one or more specified foreign countries;

                     (b)  one or more specified bodies each of which is:

                              (i)  a police force or police service of a foreign country; or

                             (ii)  a law enforcement body of a foreign country (including a war crimes tribunal); or

                            (iii)  a border control body of a foreign country;

                     (c)  one or more specified international organisations, or specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;

                     (d)  one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;

                     (e)  one or more prescribed international organisations.

             (2)  The Secretary or Australian Border Force Commissioner must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subsection 5A(3).

             (3)  A disclosure is taken not to be authorised under this section if:

                     (a)  the person to whom the identifying information relates is:

                              (i)  an applicant for a protection visa; or

                             (ii)  an unauthorised maritime arrival who makes a claim for protection as a refugee; or

                            (iii)  an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and

                     (b)  the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.

             (4)  A disclosure is taken not to be authorised under this section if:

                     (a)  the person to whom the identifying information relates is:

                              (i)  an applicant for a protection visa; or

                             (ii)  an unauthorised maritime arrival who makes a claim for protection as a refugee; or

                            (iii)  an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and

                     (b)  the officer making the disclosure is not reasonably satisfied that the country or body to which the disclosure is made will not disclose the identifying information to a foreign country in respect of which the application or claim is made, or a body of such a country.

             (5)  However, if:

                     (a)  the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which the application or claim is made; or

                     (b)  the person is an applicant for a protection visa, and the application has been refused and finally determined; or

                     (c)  the person is an unauthorised maritime arrival:

                              (i)  who makes a claim for protection as a refugee; and

                             (ii)  who, following assessment of his or her claim, is found not to be a person in respect of whom Australia has protection obligations; or

                    (ca)  the person is an unauthorised maritime arrival:

                              (i)  who makes a claim for protection on the basis that the person will suffer significant harm; and

                             (ii)  who, following assessment of his or her claim, is found not to be a person for whom there is a real risk of suffering significant harm; or

                   (cb)  the person is an unauthorised maritime arrival:

                              (i)  who makes a claim for protection on the basis that the person will suffer significant harm; and

                             (ii)  who, following assessment of his or her claim, is found to be a person in respect of whom there are serious reasons for considering that he or she has committed a crime against peace, a war crime or a crime against humanity (as defined by international instruments prescribed by the regulations) or a serious non‑political crime before entering Australia, or that he or she has been guilty of acts contrary to the purposes and principles of the United Nations; or

                    (cc)  the person is an unauthorised maritime arrival:

                              (i)  who makes a claim for protection on the basis that the person will suffer significant harm; and

                             (ii)  who, following assessment of his or her claim, is found to be a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community;

then:

                     (d)  subsection (3) does not apply to a disclosure to that country or to a body of that country; and

                     (e)  subsection (4) does not apply to a disclosure to a body or country that may disclose the identifying information to that foreign country or to a body of that country.

Note:          See subsection 5(9) for when an application is finally determined.

336FA  Disclosure of certain personal identifiers to selected individuals

             (1)  For the purposes of paragraph 336E(2)(j), this section authorises the disclosure, by an officer, of identifying information that relates to a person (the subject) if:

                     (a)  the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and

                     (b)  the disclosure is made to an individual; and

                     (c)  the disclosure is for the purpose of obtaining the individual’s help to do one or more of the following in connection with the administration of this Act:

                              (i)  identify, authenticate the identity of, or locate, the subject;

                             (ii)  refer the officer to another person who might be able to help identify, authenticate the identity of, or locate, the subject; and

                     (d)  the officer has reasonable grounds to believe that the individual might be able to provide the help that is the purpose of the officer’s disclosure; and

                     (e)  the officer is satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help; and

                      (f)  the information is only disclosed to the extent necessary in order to obtain that help.

Note:          The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.

             (2)  Nothing in subsection (1) prevents an officer from disclosing the personal identifier to more than one individual at the same time, as long as the requirements of subsection (1) are met in relation to each one of those individuals.

336FB  Disclosure of other relevant information to selected individuals

             (1)  An officer may disclose, to an individual, personal information about a person (the subject) if:

                     (a)  the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and

                     (b)  the personal information is disclosed together with the personal identifier; and

                     (c)  paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to the personal information as well as the personal identifier.

             (2)  This section does not apply to personal information that is identifying information.

             (3)  Nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to each one of those individuals.

336FC  Disclosure of certain personal identifiers to the general public

             (1)  For the purposes of paragraph 336E(2)(k), this section authorises the disclosure of identifying information that relates to a person (the subject) who is not a minor, if:

                     (a)  the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and

                     (b)  the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the subject, in connection with the administration of this Act; and

                     (c)  the Secretary or Australian Border Force Commissioner has authorised, in writing, disclosure of the personal identifier.

Note:          The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.

             (2)  The Secretary or Australian Border Force Commissioner must not authorise disclosure of the personal identifier unless:

                     (a)  the Secretary or Australian Border Force Commissioner is satisfied that other reasonable steps have been taken to identify, authenticate the identity of, or locate, the subject; and

                     (b)  either:

                              (i)  the Secretary or Australian Border Force Commissioner is satisfied that the subject has been informed of the proposed disclosure (including the personal identifier that is to be disclosed and the manner in which the disclosure is to be made) and the Secretary or Australian Border Force Commissioner has either considered the subject’s views in relation to the proposed disclosure or been satisfied that the subject has no views in relation to it; or

                             (ii)  the Secretary or Australian Border Force Commissioner is satisfied that the subject cannot be found; and

                     (c)  the Secretary or Australian Border Force Commissioner has considered the sensitivity of the personal identifier that is to be disclosed; and

                     (d)  the Secretary or Australian Border Force Commissioner is satisfied that it is reasonably necessary to authorise disclosure in order to identify, authenticate the identity of, or locate, the subject; and

                     (e)  if personal information that is not identifying information is to be disclosed together with the personal identifier—the Secretary or Australian Border Force Commissioner is satisfied that it is reasonably necessary to disclose the personal information together with the personal identifier in order to identify, authenticate the identity of, or locate, the subject.

             (3)  For the purposes of subparagraph (2)(b)(i), if the subject does not express a view in relation to the proposed disclosure within a reasonable time of being informed of it, the Secretary or Australian Border Force Commissioner is entitled to be satisfied that the subject has no views in relation to it.

             (4)  If the Secretary or Australian Border Force Commissioner authorises disclosure of a personal identifier under paragraph (1)(c), the authority covers all disclosures of the identifier made for the purpose mentioned in paragraph (1)(b).

             (5)  An authority under paragraph (1)(c) is not a legislative instrument.

336FD  Disclosure of other relevant information to the general public

             (1)  For the purposes of paragraph 6.2(b) of Australian Privacy Principle 6, the disclosure by a person of personal information about another person (the subject) is taken to be a disclosure that is authorised by this Act if:

                     (a)  the person is disclosing a personal identifier of the subject and the disclosure is authorised by section 336FC; and

                     (b)  the personal information is disclosed together with the personal identifier; and

                     (c)  the disclosure of the personal information is for the purpose mentioned in paragraph 336FC(1)(b).

             (2)  This section does not apply to personal information that is identifying information.

Division 4Modifying 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 5Destroying 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 5Review of Part 5‑reviewable decisions

Division 1Interpretation

336M  Simplified outline of this Part

This Part provides for the review of Part 5‑reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Part 5‑reviewable decisions relate to the grant or cancellation of visas in some circumstances. They do not include decisions relating to protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate.

Part 7‑reviewable decisions (which generally relate to protection visas) are reviewable in accordance with Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:

       (a)     some decisions to cancel business visas;

      (b)     some decisions relating to migration agents;

       (c)     some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.

336N  Scope of this Part

             (1)  This Part applies in relation to the review by the Tribunal of Part 5‑reviewable decisions (see section 338).

             (2)  The Tribunal’s powers in relation to Part 5‑reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.

337  Interpretation

                   In this Part:

Australian permanent resident means an Australian permanent resident within the meaning of the regulations.

company includes any body or association (whether or not it is incorporated), but does not include a partnership.

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 5‑reviewable decision:

                     (a)  a decision to affirm the Part 5‑reviewable decision;

                     (b)  a decision to vary the Part 5‑reviewable decision;

                     (c)  a decision under paragraph 349(2)(c) to remit a matter in relation to the Part 5‑reviewable decision for reconsideration;

                     (d)  a decision to set the Part 5‑reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.

member means a member of the Tribunal.

nominated has the same meaning as in the regulations.

officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975.

Part 5‑reviewable decision: see section 338.

Registrar means the Registrar of the Tribunal.

sponsored has the same meaning as in the regulations.

Note:          “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).

Division 2Part 5‑reviewable decisions

338  Definition of Part 5‑reviewable decision

             (1)  A decision is a Part 5‑reviewable decision if this section so provides, unless:

                     (a)  the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

                     (b)  the decision is a Part 7‑reviewable decision; or

                     (c)  the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or

                     (d)  the decision is a fast track decision.

             (2)  A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:

                     (a)  the visa could be granted while the non‑citizen is in the migration zone; and

                     (b)  the non‑citizen made the application for the visa while in the migration zone; and

                     (c)  the decision was not made when the non‑citizen:

                              (i)  was in immigration clearance; or

                             (ii)  had been refused immigration clearance and had not subsequently been immigration cleared; and

                     (d)  where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

                              (i)  the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

                             (ii)  an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

             (3)  A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is a Part 5‑reviewable decision unless the decision:

                     (a)  is covered by subsection (4); or

                     (b)  is made at a time when the non‑citizen was in immigration clearance; or

                     (c)  was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or

                     (d)  was made personally by the Minister under section 109 or 116 or subsection 140(2).

          (3A)  A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is a Part 5‑reviewable decision if the non‑citizen was in the migration zone when the decision was made.

             (4)  The following decisions are Part 5‑reviewable decisions:

                     (a)  a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;

                     (b)  a decision of a delegate of the Minister to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.

             (5)  A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

                     (b)  the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

                              (i)  an Australian citizen; or

                             (ii)  a company that operates in the migration zone; or

                            (iii)  a partnership that operates in the migration zone; or

                            (iv)  the holder of a permanent visa; or

                             (v)  a New Zealand citizen who holds a special category visa.

             (6)  A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

                     (b)  a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and

                     (c)  a parent, spouse, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.

Note:          Section 5G may be relevant for determining family relationships for the purposes of this subsection.

             (7)  A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

                     (b)  a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and

                     (c)  particulars of the relative concerned are included in the application.

Note:          Section 5G may be relevant for determining family relationships for the purposes of this subsection.

          (7A)  A decision to refuse to grant a non‑citizen a permanent visa is a Part 5‑reviewable decision if:

                     (a)  the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and

                     (b)  the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.

             (8)  A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5‑reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the applicant is in the migration zone; and

                     (b)  the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

                              (i)  an Australian citizen; or

                             (ii)  the holder of a permanent visa; or

                            (iii)  a New Zealand citizen who holds a special category visa; and

                     (c)  the Minister has not refused to grant the visa.

             (9)  A decision that is prescribed for the purposes of this subsection is a Part 5‑reviewable decision.

339  Conclusive certificates

                   The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

                     (a)  it would be contrary to the national interest to change the decision; or

                     (b)  it would be contrary to the national interest for the decision to be reviewed.

Note:          If the Minister issues a conclusive certificate in relation to a decision, the decision is not a Part 5‑reviewable decision (see subsections 338(1) and 348(2)).

Division 3Part 5‑reviewable decisions: Tribunal review

347  Application for review of Part 5‑reviewable decisions

             (1)  An application for review of a Part 5‑reviewable decision must:

                     (a)  be made in the approved form; and

                     (b)  be given to the Tribunal within the prescribed period, being a period ending not later than:

                              (i)  if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

                             (ii)  if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

                            (iii)  if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

                     (c)  be accompanied by the prescribed fee (if any).

             (2)  An application for review may only be made by:

                     (a)  if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or

                     (b)  if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or

                     (c)  if the Part 5‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or

                     (d)  if the Part 5‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

Note:          Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).

             (3)  If the Part 5‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

          (3A)  If the Part 5‑reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:

                     (a)  was physically present in the migration zone at the time when the decision was made; and

                     (b)  is physically present in the migration zone when the application for review is made.

             (4)  If the Part 5‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:

                     (a)  request the opportunity to appear before the Tribunal; and

                     (b)  request the Tribunal to obtain oral evidence from a specified person or persons.

A request must be made in the approved form and must accompany the application for review.

             (5)  Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

348  Tribunal to review Part 5‑reviewable decisions

             (1)  Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.

             (2)  The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.

349  Tribunal powers on review of Part 5‑reviewable decisions

             (1)  The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

             (2)  The Tribunal may:

                     (a)  affirm the decision; or

                     (b)  vary the decision; or

                     (c)  if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

                     (d)  set the decision aside and substitute a new decision; or

                     (e)  if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

             (3)  If the Tribunal:

                     (a)  varies the decision; or

                     (b)  sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

             (4)  To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

350  Review of assessments made under section 93

             (1)  In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:

                     (a)  the regulations for that purpose that were in force at the time the assessment was made by the Minister;

                     (b)  the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.

             (2)  In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are:

                     (a)  in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and

                     (b)  in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the Tribunal about the assessment.

351  Minister may substitute more favourable decision

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

             (2)  In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

             (3)  The power under subsection (1) may only be exercised by the Minister personally.

             (4)  If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the decision of the Tribunal; and

                     (b)  sets out the decision substituted by the Minister; and

                     (c)  sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (5)  A statement made under subsection (4) is not to include:

                     (a)  the name of the applicant; or

                     (b)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

             (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

352  Tribunal to notify Secretary of application for review of Part 5‑reviewable decisions

             (1)  If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

             (2)  Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

                     (a)  sets out the findings of fact made by the person who made the decision; and

                     (b)  refers to the evidence on which those findings were based; and

                     (c)  gives the reasons for the decision.

             (3)  If the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application.

             (4)  The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

Division 4Part 5‑reviewable decisions: Tribunal powers

353  Tribunal’s way of operating

                   The Tribunal, in reviewing a Part 5‑reviewable decision:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  shall act according to substantial justice and the merits of the case.

353B  Guidance decisions

             (1)  The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Migration Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 5‑reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

Division 5Part 5‑reviewable decisions: conduct of review

357A  Exhaustive statement of natural justice hearing rule

             (1)  This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

             (2)  Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

             (3)  In applying this Division, the Tribunal must act in a way that is fair and just.

358  Documents to be given to the Tribunal

             (1)  An applicant for review by the Tribunal may give the Tribunal:

                     (a)  a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

                     (b)  written arguments relating to the issues arising in relation to the decision under review.

             (2)  The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.

359  Tribunal may seek information

             (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

             (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

             (3)  If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 379A; or

                     (b)  if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

             (4)  If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

359AA  Information and invitation given orally by Tribunal while applicant appearing

             (1)  If an applicant is appearing before the Tribunal because of an invitation under section 360:

                     (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

                     (b)  if the Tribunal does so—the Tribunal must:

                              (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

                             (ii)  orally invite the applicant to comment on or respond to the information; and

                            (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

                            (iv)  if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

359A  Information and invitation given in writing by Tribunal

             (1)  Subject to subsections (2) and (3), the Tribunal must:

                     (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

                     (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

                     (c)  invite the applicant to comment on or respond to it.

             (2)  The information and invitation must be given to the applicant:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 379A; or

                     (b)  if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

             (3)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

             (4)  This section does not apply to information:

                     (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

                     (b)  that the applicant gave for the purpose of the application for review; or

                   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

                     (c)  that is non‑disclosable information.

             (5)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

359B  Requirements for written invitation etc.

             (1)  If a person is:

                     (a)  invited in writing under section 359 to give information; or

                     (b)  invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

             (2)  If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

             (3)  If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

                     (a)  at the place specified in the invitation; and

                     (b)  at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

             (4)  If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

             (5)  If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

                     (a)  a later time within that period; or

                     (b)  a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

359C  Failure to give information, comments or response in response to written invitation

             (1)  If a person:

                     (a)  is invited in writing under section 359 to give information; and

                     (b)  does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

             (2)  If the applicant:

                     (a)  is invited under section 359A to comment on or respond to information; and

                     (b)  does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

360  Tribunal must invite applicant to appear

             (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

             (2)  Subsection (1) does not apply if:

                     (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

                     (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

                     (c)  subsection 359C(1) or (2) applies to the applicant.

             (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

360A  Notice of invitation to appear

             (1)  If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

             (2)  The notice must be given to the applicant:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 379A; or

                     (b)  if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

             (4)  The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

             (5)  The notice must contain a statement of the effect of section 362B.

361  Applicant may request Tribunal to call witness and obtain written material

             (1)  In the notice under section 360A, the Tribunal shall notify the applicant:

                     (a)  that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

                     (b)  of the effect of subsections (2) and (2A) of this section.

             (2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

          (2A)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:

                     (a)  written evidence from a person or persons named in the notice; or

                     (b)  other written material relating to the issues arising in relation to the decision under review.

             (3)  If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.

             (4)  This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).

362  Certain bridging visa decisions—request to call witnesses

             (1)  This section applies to the review of a decision covered by subsection 338(4) if:

                     (a)  the applicant, in a request in the approved form that accompanied the application, requested the Tribunal to:

                              (i)  give the applicant the opportunity to appear before it; or

                             (ii)  obtain oral evidence from a specified person or persons; and

                     (b)  the applicant has been invited to appear before the Tribunal in relation to the decision under review.

             (2)  If this section applies, the Tribunal:

                     (a)  must have regard to the applicant’s request; but

                     (b)  is not required to obtain evidence (oral or otherwise) from a person named in the applicant’s request.

             (3)  To avoid doubt, nothing in this Division requires the Tribunal to adjourn the review or to delay making a decision so that:

                     (a)  the applicant may give evidence (oral or otherwise); or

                     (b)  the Tribunal may obtain evidence (oral or otherwise) from any other person.

362A  Applicant entitled to have access to written material before Tribunal

             (1)  Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

             (2)  This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

             (3)  This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

362B  Failure of applicant to appear before Tribunal

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 360 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

Note:          Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 368.

Note 1:       Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 14day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

Note:          Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

             (2)  This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

362C  Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non‑appearance decision):

                     (a)  a decision to dismiss an application under paragraph 362B(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A.

Written statement of decision

             (2)  If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non‑appearance decision is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

             (4)  The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

363  Powers of the Tribunal etc.

             (1)  For the purpose of the review of a decision, the Tribunal may:

                     (a)  take evidence on oath or affirmation;

                     (b)  adjourn the review from time to time;

                     (c)  subject to section 378, give information to the applicant and to the Secretary; or

                     (d)  require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

             (2)  The Tribunal may combine the reviews of 2 or more Part 5‑reviewable decisions made in respect of the same person.

             (3)  Subject to subsection (4), the Tribunal may, for the purposes of a review:

                     (a)  summon a person to appear before the Tribunal to give evidence;

                     (b)  summon a person to produce to the Tribunal the documents or things referred to in the summons;

                     (c)  require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and

                     (d)  administer an oath or affirmation to a person so appearing.

             (4)  The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

363A  Tribunal does not have power to permit a person to do something he or she is not entitled to do

                   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

364  Tribunal’s power to take evidence

             (1)  The power (the evidence power) of the Tribunal under paragraph 363(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:

                     (a)  a member conducting the review; or

                     (b)  another person (whether or not a member) authorised in writing by that member.

             (2)  The evidence power may be exercised:

                     (a)  inside or outside Australia; and

                     (b)  subject to any limitations or requirements specified by the Tribunal.

             (3)  If a person other than a member conducting the review has the evidence power:

                     (a)  the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 363(1) and paragraphs 363(3)(c) and (d); and

                     (b)  this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and

                     (c)  the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and

                     (d)  for the purposes of section 360, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.

365  Review to be in public

             (1)  Subject to this section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public.

             (2)  Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private.

             (3)  If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private.

             (4)  Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given.

366  Oral evidence by telephone etc.

             (1)  For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

                     (a)  telephone; or

                     (b)  closed‑circuit television; or

                     (c)  any other means of communication.

             (2)  If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.

366A  Applicant may be assisted by another person while appearing before Tribunal

             (1)  The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.

             (2)  The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.

             (3)  Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

             (4)  This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

366B  Other persons not to be assisted or represented while appearing before Tribunal

             (1)  A person, other than the applicant, is not entitled, while appearing before the Tribunal, to:

                     (a)  have another person present to assist him or her; or

                     (b)  be represented by another person.

             (2)  This section does not affect the entitlement of the person to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

366C  Interpreters

             (1)  A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.

             (2)  The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.

             (3)  If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).

366D  Examination and cross‑examination not permitted

                   A person is not entitled to examine or cross‑examine any person appearing before the Tribunal to give evidence.

367  Certain bridging visa decisions—to be made within prescribed period

             (1)  Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.

             (2)  The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.

Division 6Part 5‑reviewable decisions: Tribunal decisions

368  Tribunal’s decision and written statement

Written statement of decision

             (1)  Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:

                     (a)  sets out the decision of the Tribunal on the review; and

                     (b)  sets out the reasons for the decision; and

                     (c)  sets out the findings on any material questions of fact; and

                     (d)  refers to the evidence or any other material on which the findings of fact were based; and

                     (e)  in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

             (2)  A decision on a review (other than an oral decision) is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

Note:          For oral decisions, see section 368D.

          (2A)  The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

             (3)  After the Tribunal makes the written statement, the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (4)  The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (3).

368A  Notifying parties of Tribunal’s decision (decision not given orally)

             (1)  The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379A.

             (2)  A copy of that statement must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379B.

             (3)  A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

368D  Tribunal’s decisions given orally

How and when oral decisions are taken to have been made

             (1)  A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

Statement in relation to oral decision

             (2)  If a decision on a review is given orally, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

             (3)  The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 379A; and

                             (ii)  to the Secretary by one of the methods specified in section 379B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 379B; and

                             (ii)  to the applicant by one of the methods specified in section 379A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

Division 7Part 5‑reviewable decisions: offences

370  Failure to comply with summons

             (1)  A person commits an offence if:

                     (a)  the person is given a summons under section 363; and

                     (b)  the person fails to comply with the summons.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

             (2)  Subsection (1) does not apply if complying with the summons might tend to incriminate the person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

371  Refusal to be sworn or to answer questions

Oath or affirmation

             (1)  A person commits an offence if:

                     (a)  the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and

                     (b)  the person has been required under section 363 either to take an oath or to make an affirmation; and

                     (c)  the person fails to comply with the requirement.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

Questions

             (2)  A person commits an offence if:

                     (a)  the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and

                     (b)  the Tribunal has required the person to answer a question for the purposes of the proceeding; and

                     (c)  the person fails to answer the question.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

             (3)  Subsection (2) does not apply if answering the question might tend to incriminate the person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Division 8Part 5‑reviewable decisions: miscellaneous

375  Restrictions on disclosure of certain information etc.

                   In spite of anything else in this Act, the Secretary shall not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:

                     (a)  because it would prejudice the security, defence or international relations of Australia; or

                     (b)  because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

375A  Certain information only to be disclosed to Tribunal

             (1)  This section applies to a document or information if the Minister:

                     (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

                     (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

             (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

                     (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

                     (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

376  Tribunal’s discretion in relation to disclosure of certain information etc.

             (1)  This section applies to a document or information if:

                     (a)  the Minister:

                              (i)  has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and

                             (ii)  has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or

                     (b)  the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.

             (2)  Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

                     (a)  shall notify the Tribunal in writing that this section applies in relation to the document or information; and

                     (b)  may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

             (3)  Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

                     (a)  may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

                     (b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.

378  Tribunal may restrict publication of certain matters

             (1)  Where the Tribunal is satisfied, in relation to a review, that it is in the public interest that:

                     (a)  any evidence given before the Tribunal;

                     (b)  any information given to the Tribunal; or

                     (c)  the contents of any document produced to the Tribunal;

should not be published, or should not be published except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.

             (2)  Where the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:

                     (a)  excuse the Tribunal from its obligations under section 368; or

                     (b)  prevent a person from communicating to another person a matter contained in the evidence, information or document if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.

             (3)  A person shall not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.

Penalty:  Imprisonment for 2 years.

Division 8APart 5‑reviewable decisions: giving and receiving documents

379AA  Giving documents by Tribunal where no requirement to do so by section 379A or 379B method

             (1)  If:

                     (a)  a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and

                     (b)  the provision does not state that the document must be given:

                              (i)  by one of the methods specified in section 379A or 379B; or

                             (ii)  by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note 1:       If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA.

Note 2:       Under section 379G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

             (2)  If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that:

                     (a)  the individual has day‑to‑day care and responsibility for the minor; or

                     (b)  the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

          (2A)  However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

             (3)  If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

379A  Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Tribunal to give a document to a person (the recipient); and

                     (b)  state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

          (1A)  If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

                     (a)  who is at least 18 years of age; and

                     (b)  who a member or an officer of the Tribunal reasonably believes:

                              (i)  has day‑to‑day care and responsibility for the minor; or

                             (ii)  works in an or for organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:          If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

          (1B)  However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

Giving by hand

             (2)  One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.

Handing to a person at last residential or business address

             (3)  Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

                     (a)  is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and

                     (b)  appears to live there (in the case of a residential address) or work there (in the case of a business address); and

                     (c)  appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

             (4)  Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by prepaid post or by other prepaid means; and

                     (c)  to:

                              (i)  the last address for service provided to the Tribunal by the recipient in connection with the review; or

                             (ii)  the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

                            (iii)  if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.

Transmission by fax, email or other electronic means

             (5)  Another method consists of a member or an officer of the Tribunal transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to:

                     (d)  the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

                     (e)  if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

Documents given to a carer

             (6)  If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

379B  Methods by which Tribunal gives documents to the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Tribunal to give a document to the Secretary; and

                     (b)  state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

Giving by hand

             (2)  One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.

Dispatch by post or by other means

             (3)  Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by post or by other means; and

                     (c)  to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched.

Transmission by fax, email or other electronic means

             (4)  Another method consists of a member or an officer of the Tribunal transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

379C  When a person other than the Secretary is taken to have received a document from the Tribunal

             (1)  This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).

Giving by hand

             (2)  If the Tribunal gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

             (3)  If the Tribunal gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

             (4)  If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

                     (a)  if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

                     (b)  in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

             (5)  If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

Document not given effectively

             (7)  If:

                     (a)  the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and

                     (b)  the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

379D  When the Secretary is taken to have received a document from the Tribunal

             (1)  This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 379B (including in a case covered by section 379AA).

Giving by hand

             (2)  If the Tribunal gives a document to the Secretary by the method in subsection 379B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.

Dispatch by post or by other means

             (3)  If the Tribunal gives a document to the Secretary by the method in subsection 379B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:

                     (a)  if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

                     (b)  in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

             (4)  If the Tribunal gives a document to the Secretary by the method in subsection 379B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.

379EA  Giving documents by Tribunal—combined applications

                   If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.

Note 1:       If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

Note 2:       Section 379G deals with giving documents to a person’s authorised recipient.

379F  Giving documents etc. to the Tribunal

                   If, in relation to the review of a Part 5‑reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:

                     (a)  by giving the document or thing to an officer of the Tribunal; or

                     (b)  by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or

                     (c)  if the regulations set out a method for doing so—by that method.

379G  Authorised recipient

             (1)  If:

                     (a)  a person (the applicant) applies for review of a Part 5‑reviewable decision; and

                     (b)  the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note:          If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

          (1A)  For the purposes of subsection (1):

                     (a)  paragraph (1)(a) is taken to also apply to an application for review of a Part 5‑reviewable decision where the application is not properly made under section 347; and

                     (b)  in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).

             (2)  If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

             (3)  Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.

          (3A)  In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

             (5)  This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

Part 7Review of Part 7‑reviewable decisions

Division 1Interpretation

408  Simplified outline of this Part

This Part provides for the review of Part 7‑reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Part 7‑reviewable decisions relate to the grant or cancellation of protection visas in some circumstances. They do not include decisions in relation to which the Minister has given a conclusive certificate.

Part 5‑reviewable decisions (which relate to the grant or cancellation of visas other than protection visas in some circumstances) are reviewable in accordance with Part 5 by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:

       (a)     some decisions to cancel business visas;

      (b)     some decisions relating to migration agents;

       (c)     some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.

409  Scope of this Part

             (1)  This Part applies in relation to the review by the Tribunal of Part 7‑reviewable decisions (see section 411).

             (2)  The Tribunal’s powers in relation to Part 7‑reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.

410  Interpretation

                   In this Part:

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 7‑reviewable decision:

                     (a)  a decision to affirm the Part 7‑reviewable decision;

                     (b)  a decision to vary the Part 7‑reviewable decision;

                     (c)  a decision under paragraph 415(2)(c) to remit a matter in relation to the Part 7‑reviewable decision for reconsideration;

                     (d)  a decision to set the Part 7‑reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application.

member means a member of the Tribunal.

officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975.

Part 7‑reviewable decision: see section 411.

Registrar means the Registrar of the Tribunal.

Note:          “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).

Division 2Part 7‑reviewable decisions

411  Definition of Part 7‑reviewable decision

             (1)  Subject to subsection (2), the following decisions are Part 7‑reviewable decisions:

                     (a)  a decision, made before 1 September 1994, that a non‑citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);

                     (b)  a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);

                     (c)  a decision to refuse to grant a protection visa, other than a decision that was made relying on:

                              (i)  subsection 5H(2), or 36(1B) or (1C); or

                            (iii)  paragraph 36(2C)(a) or (b);

                     (d)  a decision to cancel a protection visa, other than a decision that was made because of:

                              (i)  subsection 5H(2) or 36(1C); or

                             (ii)  an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

                            (iii)  paragraph 36(2C)(a) or (b).

             (2)  The following decisions are not Part 7‑reviewable decisions:

                    (aa)  any decision to cancel a protection visa that is made personally by the Minister;

                     (a)  decisions made in relation to a non‑citizen who is not physically present in the migration zone when the decision is made;

                     (b)  decisions in relation to which the Minister has issued a conclusive certificate under subsection (3);

                     (c)  fast track decisions.

             (3)  The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

                     (a)  it would be contrary to the national interest to change the decision; or

                     (b)  it would be contrary to the national interest for the decision to be reviewed.

412  Application for review of Part 7‑reviewable decisions

             (1)  An application for review of a Part 7‑reviewable decision must:

                     (a)  be made in the approved form; and

                     (b)  be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

                     (c)  be accompanied by the prescribed fee (if any).

             (2)  An application for review may only be made by the non‑citizen who is the subject of the primary decision.

             (3)  An application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

             (4)  Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

414  Tribunal to review Part 7‑reviewable decisions

             (1)  Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.

             (2)  The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

415  Tribunal powers on review of Part 7‑reviewable decisions

             (1)  The Tribunal may, for the purposes of the review of a Part 7‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

             (2)  The Tribunal may:

                     (a)  affirm the decision; or

                     (b)  vary the decision; or

                     (c)  if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

                     (d)  set the decision aside and substitute a new decision; or

                     (e)  if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

             (3)  If the Tribunal:

                     (a)  varies the decision; or

                     (b)  sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

             (4)  To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

416  Multiple review applications—consideration of information

Scope

             (1)  This section applies if:

                     (a)  a non‑citizen has made an application (the earlier application) to a review body for review of a decision under this Part; and

                     (b)  the earlier application has been determined by a review body; and

                     (c)  the non‑citizen makes a further application, to the Tribunal, for review of a Part 7‑reviewable decision.

Review body not required to consider earlier information

             (2)  The Tribunal, in considering the further application:

                     (a)  is not required to consider any information considered in the earlier application; and

                     (b)  may have regard to, and take to be correct, any decision that a review body has made about or because of that information.

             (3)  In this section:

review body means:

                     (a)  the former Refugee Review Tribunal; or

                     (b)  the Tribunal.

Note:          The Refugee Review Tribunal was abolished from 1 July 2015, and its functions transferred to the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”).

417  Minister may substitute more favourable decision

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

             (2)  In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

             (3)  The power under subsection (1) may only be exercised by the Minister personally.

             (4)  If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the decision of the Tribunal; and

                     (b)  sets out the decision substituted by the Minister; and

                     (c)  sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (5)  A statement made under subsection (4) is not to include:

                     (a)  the name of the applicant; or

                     (b)  any information that may identify the applicant; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

418  Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions

             (1)  If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

             (2)  The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

                     (a)  sets out the findings of fact made by the person who made the decision; and

                     (b)  refers to the evidence on which those findings were based; and

                     (c)  gives the reasons for the decision.

             (3)  The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

Division 3Part 7‑reviewable decisions: Tribunal powers

420  Tribunal’s way of operating

                   The Tribunal, in reviewing a Part 7‑reviewable decision:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act according to substantial justice and the merits of the case.

420B  Guidance decisions

             (1)  The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Refugee Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 7‑reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

Division 4Part 7‑reviewable decisions: conduct of review

422B  Exhaustive statement of natural justice hearing rule

             (1)  This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

             (2)  Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

             (3)  In applying this Division, the Tribunal must act in a way that is fair and just.

423  Documents to be given to the Tribunal

             (1)  An applicant for review by the Tribunal may give the Registrar:

                     (a)  a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

                     (b)  written arguments relating to the issues arising in relation to the decision under review.

             (2)  The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.

423A  How Tribunal is to deal with new claims or evidence

             (1)  This section applies if, in relation to an application for review of an RRT‑reviewable decision (the primary decision) in relation to a protection visa, the applicant:

                     (a)  raises a claim that was not raised in the application before the primary decision was made; or

                     (b)  presents evidence in the application that was not presented in the application before the primary decision was made.

             (2)  In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

424  Tribunal may seek information

             (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

             (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

             (3)  A written invitation under subsection (2) must be given to the person:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 441A; or

                     (b)  if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

424AA  Information and invitation given orally by Tribunal while applicant appearing

             (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

                     (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

                     (b)  if the Tribunal does so—the Tribunal must:

                              (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

                             (ii)  orally invite the applicant to comment on or respond to the information; and

                            (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

                            (iv)  if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A  Information and invitation given in writing by Tribunal

             (1)  Subject to subsections (2A) and (3), the Tribunal must:

                     (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

                     (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

                     (c)  invite the applicant to comment on or respond to it.

             (2)  The information and invitation must be given to the applicant:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 441A; or

                     (b)  if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

          (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

             (3)  This section does not apply to information:

                     (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

                     (b)  that the applicant gave for the purpose of the application for review; or

                   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

                     (c)  that is non‑disclosable information.

             (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424B  Requirements for written invitation etc.

             (1)  If a person is:

                     (a)  invited in writing under section 424 to give information; or

                     (b)  invited under section 424A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

             (2)  If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

             (3)  If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

                     (a)  at the place specified in the invitation; and

                     (b)  at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

             (4)  If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

             (5)  If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

                     (a)  a later time within that period; or

                     (b)  a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

424C  Failure to give information, comments or response in response to written invitation

             (1)  If a person:

                     (a)  is invited in writing under section 424 to give information; and

                     (b)  does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

             (2)  If the applicant:

                     (a)  is invited under section 424A to comment on or respond to information; and

                     (b)  does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

425  Tribunal must invite applicant to appear

             (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

             (2)  Subsection (1) does not apply if:

                     (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

                     (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

                     (c)  subsection 424C(1) or (2) applies to the applicant.

             (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

425A  Notice of invitation to appear

             (1)  If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

             (2)  The notice must be given to the applicant:

                     (a)  except where paragraph (b) applies—by one of the methods specified in section 441A; or

                     (b)  if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

             (3)  The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

             (4)  The notice must contain a statement of the effect of section 426A.

426  Applicant may request Tribunal to call witnesses

             (1)  In the notice under section 425A, the Tribunal must notify the applicant:

                     (a)  that he or she is invited to appear before the Tribunal to give evidence; and

                     (b)  of the effect of subsection (2) of this section.

             (2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

             (3)  If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

426A  Failure of applicant to appear before Tribunal

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 425 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:          Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 430.

Note 1:       Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 14day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:          Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

             (2)  This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

426B  Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non‑appearance decision):

                     (a)  a decision to dismiss an application under paragraph 426A(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

Written statement of decision

             (2)  If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non‑appearance decision is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

             (4)  The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

427  Powers of the Tribunal etc.

             (1)  For the purpose of the review of a decision, the Tribunal may:

                     (a)  take evidence on oath or affirmation; or

                     (b)  adjourn the review from time to time; or

                     (c)  subject to sections 438 and 440, give information to the applicant and to the Secretary; or

                     (d)  require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

             (2)  The Tribunal must combine the reviews of 2 or more Part 7‑reviewable decisions made in respect of the same non‑citizen.

             (3)  Subject to subsection (4), the Tribunal in relation to a review may:

                     (a)  summon a person to appear before the Tribunal to give evidence; and

                     (b)  summon a person to produce to the Tribunal the documents or things referred to in the summons; and

                     (c)  require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

                     (d)  administer an oath or affirmation to a person so appearing.

             (4)  The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

             (6)  A person appearing before the Tribunal to give evidence is not entitled:

                     (a)  to be represented before the Tribunal by any other person; or

                     (b)  to examine or cross‑examine any other person appearing before the Tribunal to give evidence.

             (7)  If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

428  Tribunal’s power to take evidence

             (1)  The power (the evidence power) of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:

                     (a)  a member conducting the review; or

                     (b)  another person (whether or not a member) authorised in writing by that member.

             (2)  The evidence power may be exercised:

                     (a)  inside or outside Australia; and

                     (b)  subject to any limitations or requirements specified by the Tribunal.

             (3)  If a person other than a member conducting the review has the evidence power:

                     (a)  the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 427(1) and paragraphs 427(3)(c) and (d); and

                     (b)  this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and

                     (c)  the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and

                     (d)  for the purposes of section 425, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.

429  Review to be in private

                   The hearing of an application for review by the Tribunal must be in private.

429A  Oral evidence by telephone etc.

                   For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

                     (a)  telephone; or

                     (b)  closed‑circuit television; or

                     (c)  any other means of communication.

Division 5Part 7‑reviewable decisions: Tribunal decisions

430  Tribunal’s decision and written statement

Written statement of decision

             (1)  Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

                     (a)  sets out the decision of the Tribunal on the review; and

                     (b)  sets out the reasons for the decision; and

                     (c)  sets out the findings on any material questions of fact; and

                     (d)  refers to the evidence or any other material on which the findings of fact were based; and

                     (e)  in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

             (2)  A decision on a review (other than an oral decision) is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

Note:          For oral decisions, see section 430D.

          (2A)  The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

             (3)  After the Tribunal makes the written statement, the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (4)  The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (3).

430A  Notifying parties of Tribunal’s decision (decision not given orally)

             (1)  The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441A.

             (2)  A copy of that statement must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441B.

             (3)  A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

430D  Tribunal’s decision given orally

How and when oral decisions are taken to have been made

             (1)  A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

Statement in relation to oral decision

             (2)  If the Tribunal makes an oral decision on a review, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

             (3)  The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 441A; and

                             (ii)  to the Secretary by one of the methods specified in section 441B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 441B; and

                             (ii)  to the applicant by one of the methods specified in section 441A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

431  Identifying information not to be published

                   The Tribunal must not publish a statement made under subsection 430(1) which may identify an applicant or any relative or other dependant of an applicant.

Note:          Section 66B of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to publish decisions and the reasons for them. However, section 66B does not authorise the publication of information if its disclosure would be prohibited or restricted by another enactment (such as this) conferring jurisdiction on the Tribunal.

Division 6Part 7‑reviewable decisions: offences

432  Failure to comply with summons

             (1)  A person commits an offence if:

                     (a)  the Tribunal gives a summons to the person under section 427; and

                     (b)  the person fails to comply with the summons.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

             (2)  Subsection (1) does not apply if complying with the summons might tend to incriminate the person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

433  Refusal to be sworn or to answer questions

Oath or affirmation

             (1)  A person commits an offence if:

                     (a)  the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and

                     (b)  the person has been required under section 427 either to take an oath or to make an affirmation; and

                     (c)  the person fails to comply with the requirement.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

Questions

             (2)  A person commits an offence if:

                     (a)  the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and

                     (b)  the Tribunal has required the person to answer a question for the purposes of the proceeding; and

                     (c)  the person fails to answer the question.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

             (3)  Subsection (2) does not apply if answering the question might tend to incriminate the person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Division 7Part 7‑reviewable decisions: miscellaneous

437  Restrictions on disclosure of certain information etc.

                   In spite of anything else in this Act, the Secretary must not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:

                     (a)  because it would prejudice the security, defence or international relations of Australia; or

                     (b)  because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

438  Tribunal’s discretion in relation to disclosure of certain information etc.

             (1)  This section applies to a document or information if:

                     (a)  the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

                     (b)  the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

             (2)  If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

                     (a)  must notify the Tribunal in writing that this section applies in relation to the document or information; and

                     (b)  may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

             (3)  If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

                     (a)  may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

                     (b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

             (4)  If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

440  Tribunal may restrict publication or disclosure of certain matters

             (1)  If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:

                     (a)  any evidence given before the Tribunal; or

                     (b)  any information given to the Tribunal; or

                     (c)  the contents of any document produced to the Tribunal;

should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.

             (2)  If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:

                     (a)  excuse the Tribunal from its obligations under section 430; or

                     (b)  prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.

             (3)  A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.

Penalty:  Imprisonment for 2 years.

Division 7AReview of Part 7‑reviewable decisions: giving and receiving documents

441AA  Giving documents by Tribunal where no requirement to do so by section 441A or 441B method

             (1)  If:

                     (a)  a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and

                     (b)  the provision does not state that the document must be given:

                              (i)  by one of the methods specified in section 441A or 441B; or

                             (ii)  by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note 1:       If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 441EA.

Note 2:       Under section 441G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

             (2)  If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that:

                     (a)  the individual has day‑to‑day care and responsibility for the minor; or

                     (b)  the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

          (2A)  However, subsection (2) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

             (3)  If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441A  Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Tribunal to give a document to a person (the recipient); and

                     (b)  state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

          (1A)  If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

                     (a)  who is at least 18 years of age; and

                     (b)  who a member or an officer of the Tribunal reasonably believes:

                              (i)  has day‑to‑day care and responsibility for the minor; or

                             (ii)  works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:          If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.

          (1B)  However, subsection (1A) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

Giving by hand

             (2)  One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.

Handing to a person at last residential or business address

             (3)  Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

                     (a)  is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and

                     (b)  appears to live there (in the case of a residential address) or work there (in the case of a business address); and

                     (c)  appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

             (4)  Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by prepaid post or by other prepaid means; and

                     (c)  to:

                              (i)  the last address for service provided to the Tribunal by the recipient in connection with the review; or

                             (ii)  the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

                            (iii)  if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.

Transmission by fax, email or other electronic means

             (5)  Another method consists of a member or an officer of the Tribunal transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to:

                     (d)  the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

                     (e)  if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

Documents given to a carer

             (6)  If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441B  Methods by which Tribunal gives documents to the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Tribunal to give a document to the Secretary; and

                     (b)  state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

Giving by hand

             (2)  One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.

Dispatch by post or by other means

             (3)  Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by post or by other means; and

                     (c)  to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched.

Transmission by fax, email or other electronic means

             (4)  Another method consists of a member or an officer of the Tribunal transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

441C  When a person other than the Secretary is taken to have received a document from the Tribunal

             (1)  This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

Giving by hand

             (2)  If the Tribunal gives a document to a person by the method in subsection 441A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

             (3)  If the Tribunal gives a document to a person by the method in subsection 441A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

             (4)  If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

                     (a)  if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

                     (b)  in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

             (5)  If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

Document not given effectively

             (7)  If:

                     (a)  the Tribunal purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and

                     (b)  the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

441D  When the Secretary is taken to have received a document from the Tribunal

             (1)  This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 441B (including in a case covered by section 441AA).

Giving by hand

             (2)  If the Tribunal gives a document to the Secretary by the method in subsection 441B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.

Dispatch by post or by other means

             (3)  If the Tribunal gives a document to the Secretary by the method in subsection 441B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:

                     (a)  if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

                     (b)  in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

             (4)  If the Tribunal gives a document to the Secretary by the method in subsection 441B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.

441EA  Giving documents by Tribunal—combined applications

                   If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.

Note 1:       If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.

Note 2:       Section 441G deals with giving documents to a person’s authorised recipient.

441F  Giving documents etc. to the Tribunal

                   If, in relation to the review of a Part 7‑reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:

                     (a)  by giving the document or thing to an officer of the Tribunal; or

                     (b)  by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or

                     (c)  if the regulations set out a method for doing so—by that method.

441G  Authorised recipient

             (1)  If:

                     (a)  a person (the applicant) applies for review of a Part 7‑reviewable decision; and

                     (b)  the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note:          If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.

          (1A)  For the purposes of subsection (1):

                     (a)  paragraph (1)(a) is taken to also apply to an application for review of a Part 7‑reviewable decision where the application is not a valid application under section 412; and

                     (b)  in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not a valid application under that section).

             (2)  If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

             (3)  Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.

          (3A)  In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

             (5)  This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

Part 7AAFast track review process in relation to certain protection visa decisions

Division 1Introduction

473BA  Simplified outline of this Part

This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.

Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to the Immigration Assessment Authority.

Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers and other Reviewers are engaged under the Public Service Act 1999.

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.

473BB  Definitions

                   In this Part:

Division head means the head of the Migration and Refugee Division of the Tribunal.

fast track reviewable decision means:

                     (a)  a fast track decision in relation to a fast track review applicant; or

                     (b)  a fast track decision determined under section 473BC;

but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

Note:          Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1).

new information has the meaning given by subsection 473DC(1).

President means the President of the Tribunal.

referred applicant means an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under section 473CA.

Reviewer means a Reviewer engaged in accordance with Division 8, and includes the Senior Reviewer.

review material has the meaning given by section 473CB.

Senior Reviewer means the Senior Reviewer appointed under section 473JC.

Note:          “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).

473BC  Minister may determine that certain decisions are to be reviewed under this Part

                   The Minister may, by legislative instrument, determine that a specified fast track decision, or a specified class of fast track decisions, in relation to an excluded fast track review applicant should be reviewed under this Part.

Note 1:       Excluded fast track review applicant and fast track decision are defined in subsection 5(1).

Note 2:       If the Minister makes a determination, the fast track decision is a fast track reviewable decision (see paragraph (b) of the definition of fast track reviewable decision in section 473BB).

473BD  Minister may issue conclusive certificate in relation to certain decisions

                   The Minister may issue a conclusive certificate in relation to a fast track decision if the Minister believes that:

                     (a)  it would be contrary to the national interest to change the decision; or

                     (b)  it would be contrary to the national interest for the decision to be reviewed.

Note:          If the Minister issues a conclusive certificate, the fast track decision is not a fast track reviewable decision (see definition of fast track reviewable decision in section 473BB).

Division 2Referral of fast track reviewable decisions to Immigration Assessment Authority

473CA  Referral of fast track reviewable decisions

                   The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

473CB  Material to be provided to Immigration Assessment Authority

             (1)  The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

                     (a)  a statement that:

                              (i)  sets out the findings of fact made by the person who made the decision; and

                             (ii)  refers to the evidence on which those findings were based; and

                            (iii)  gives the reasons for the decision;

                     (b)  material provided by the referred applicant to the person making the decision before the decision was made;

                     (c)  any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

                     (d)  the following details:

                              (i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

                             (ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

                            (iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

                            (iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

                             (v)  if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

             (2)  The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

473CC  Review of decision

             (1)  The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

             (2)  The Immigration Assessment Authority may:

                     (a)  affirm the fast track reviewable decision; or

                     (b)  remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

Division 3Conduct of review

Subdivision ANatural justice requirements

473DA  Exhaustive statement of natural justice hearing rule

             (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

             (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Subdivision BReview on the papers

473DB  Immigration Assessment Authority to review decisions on the papers

             (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

                     (a)  without accepting or requesting new information; and

                     (b)  without interviewing the referred applicant.

             (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note:          Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

Subdivision CAdditional information

473DC  Getting new information

             (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

                     (a)  were not before the Minister when the Minister made the decision under section 65; and

                     (b)  the Authority considers may be relevant.

             (2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

             (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

                     (a)  in writing; or

                     (b)  at an interview, whether conducted in person, by telephone or in any other way.

473DD  Considering new information in exceptional circumstances

                   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

                     (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

                     (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

                              (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

                             (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

473DE  Certain new information must be given to referred applicant

             (1)  The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

                     (a)  give to the referred applicant particulars of any new information, but only if the new information:

                              (i)  has been, or is to be, considered by the Authority under section 473DD; and

                             (ii)  would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

                     (b)  explain to the referred applicant why the new information is relevant to the review; and

                     (c)  invite the referred applicant, orally or in writing, to give comments on the new information:

                              (i)  in writing; or

                             (ii)  at an interview, whether conducted in person, by telephone or in any other way.

             (2)  The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

             (3)  Subsection (1) does not apply to new information that:

                     (a)  is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

                     (b)  is non‑disclosable information; or

                     (c)  is prescribed by regulation for the purposes of this paragraph.

Note:          Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

473DF  Invitation to give new information or comments in writing or at interview

             (1)  This section applies if a referred applicant is:

                     (a)  invited under section 473DC to give new information in writing or at an interview; or

                     (b)  invited under section 473DE to give comments on new information in writing or at an interview.

             (2)  The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

             (3)  The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

             (4)  If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

                     (a)  without taking any further action to get the information or the referred applicant’s comments on the information; or

                     (b)  without taking any further action to allow or enable the referred applicant to take part in a further interview.

Division 4Decisions of Immigration Assessment Authority

473EA  Immigration Assessment Authority’s decision and written statement

Written statement of decision

             (1)  If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

                     (a)  sets out the decision of the Authority on the review; and

                     (b)  sets out the reasons for the decision; and

                     (c)  records the day and time the statement is made.

How and when written decisions are taken to be made

             (2)  A decision on a review is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

             (3)  The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

             (4)  After the Immigration Assessment Authority makes the written statement, the Authority must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (5)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (4).

473EB  Notification of Immigration Assessment Authority’s decision

             (1)  The Immigration Assessment Authority must notify the referred applicant of a decision on a review by giving the referred applicant a copy of the written statement prepared under subsection 473EA(1). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 473HB.

             (2)  A copy of that statement must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 473HC.

             (3)  A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

473EC  Certain decisions of the Immigration Assessment Authority to be published

             (1)  Subject to subsection (2), and to any direction under section 473GD, the Immigration Assessment Authority may publish any statements prepared under subsection 473EA(1) that the President thinks are of particular interest.

             (2)  The Immigration Assessment Authority must not publish any statement which may identify a referred applicant or any relative or other dependent of a referred applicant.

Note:          Section 5G may be relevant for determining relationships for the purposes of subsection (2).

Division 5Exercise of powers and functions by Immigration Assessment Authority

473FA  How Immigration Assessment Authority is to exercise its functions

             (1)  The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

Note:          Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.

             (2)  The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.

473FB  Practice directions

             (1)  The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

                     (a)  the operations of the Immigration Assessment Authority; and

                     (b)  the conduct of reviews by the Authority.

             (2)  Without limiting subsection (1), the directions may:

                     (a)  relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

                     (b)  set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

             (3)  The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non‑compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.

             (4)  If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

             (5)  The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

473FC  Guidance decisions

             (1)  The President may, in writing, direct that a decision (the guidance decision) of the Tribunal, the Immigration Assessment Authority or the former Refugee Review Tribunal specified in the direction is to be complied with by the Authority in reaching a decision on a review of a fast track reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Immigration Assessment Authority must comply with the guidance decision unless the Authority is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non‑compliance by the Immigration Assessment Authority with a guidance decision does not mean that the Authority’s decision on a review is an invalid decision.

Division 6Disclosure of information

473GA  Restrictions on disclosure of certain information etc.

             (1)  Despite anything else in this Act, the Secretary must not give to the Immigration Assessment Authority a document, or information, if the Minister certifies, under subsection (2), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:

                     (a)  because it would prejudice the security, defence or international relations of Australia; or

                     (b)  because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

             (2)  The Minister may issue a written certificate for the purposes of subsection (1).

473GB  Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.

             (1)  This section applies to a document or information if:

                     (a)  the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

                     (b)  the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

             (2)  If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

                     (a)  must notify the Authority in writing that this section applies in relation to the document or information; and

                     (b)  may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

             (3)  If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

                     (a)  may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

                     (b)  may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

             (4)  If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

             (5)  The Minister may issue a written certificate for the purposes of subsection (1).

473GC  Disclosure of confidential information

             (1)  This section applies to a person who is or has been:

                     (a)  a Reviewer; or

                     (b)  a person acting as a Reviewer; or

                     (c)  a person mentioned in subsection 473JE(2) who is assisting the Immigration Assessment Authority; or

                     (d)  a person providing interpreting services in connection with a review by the Authority.

             (2)  This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act.

             (3)  A person to whom this section applies must not:

                     (a)  make a record of any information to which this section applies; or

                     (b)  divulge or communicate to any person any information to which this section applies;

unless the record is made or the information is divulged or communicated:

                     (c)  for the purposes of this Act; or

                     (d)  for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act.

Penalty:  Imprisonment for 2 years.

             (4)  Subsection (3) applies to the divulging or communication of information whether directly or indirectly.

             (5)  A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:

                     (a)  a court; or

                     (b)  a tribunal; or

                     (c)  a House of the Parliament of the Commonwealth, of a State or of a Territory; or

                     (d)  a committee of a House, or the Houses, of the Parliament of the Commonwealth, of a State or of a Territory; or

                     (e)  any other authority or person having power to require the production of documents or the answering of questions;

except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.

             (6)  Nothing in this section affects a right that a person has under the Freedom of Information Act 1982.

             (7)  For the purposes of this section, a person who is providing interpreting services in connection with a review by the Immigration Assessment Authority is taken to be performing a function under this Act.

             (8)  In this section:

produce includes permit access to.

473GD  Immigration Assessment Authority may restrict publication or disclosure of certain matters

             (1)  If the President is satisfied, in relation to a review, that it is in the public interest that:

                     (a)  any information given to the Immigration Assessment Authority; or

                     (b)  the contents of any document produced to the Authority;

should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the President may give a written direction accordingly.

             (2)  A direction under subsection (1):

                     (a)  must be in writing; and

                     (b)  must be notified in a way that the President considers appropriate.

             (3)  If the President has given a direction under subsection (1) in relation to the publication of any information or of the contents of a document, the direction does not:

                     (a)  excuse the Immigration Assessment Authority from its obligations under section 473EA; or

                     (b)  prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Authority.

             (4)  A person must not contravene a direction given under subsection (1) that is applicable to the person

Penalty:  Imprisonment for 2 years.

Division 7Giving and receiving review documents etc.

473HA  Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method

             (1)  If:

                     (a)  a provision of this Act or the regulations requires or permits the Immigration Assessment Authority to give a document to a person; and

                     (b)  the provision does not state that the document must be given:

                              (i)  by one of the methods specified in section 473HB or 473HC; or

                             (ii)  by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Authority may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note:          Under section 473HG a referred applicant may give the Immigration Assessment Authority the name of an authorised recipient who is to receive documents on the referred applicant’s behalf.

             (2)  If a person is a minor, the Immigration Assessment Authority may give a document to an individual who is at least 18 years of age if the Authority reasonably believes that:

                     (a)  the individual has day‑to‑day care and responsibility for the minor; or

                     (b)  the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

             (3)  If the Immigration Assessment Authority gives a document to an individual, as mentioned in subsection (2), the Authority is taken to have given the document to the minor. However, this does not prevent the Authority giving the minor a copy of the document.

473HB  Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Immigration Assessment Authority to give a document to a person (the recipient); and

                     (b)  state that the Authority must do so by one of the methods specified in this section;

the methods are as follows.

             (2)  If the recipient is a minor, the Immigration Assessment Authority may use the methods mentioned in subsections (5) and (6) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

                     (a)  who is at least 18 years of age; and

                     (b)  who the Authority reasonably believes:

                              (i)  has day‑to‑day care and responsibility for the minor; or

                             (ii)  works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:          If the Immigration Assessment Authority gives an individual a document by the method mentioned in subsection (5) or (6), the individual is taken to have received the document at the time specified in section 473HD in respect of that method.

Giving by hand

             (3)  One method consists of a Reviewer, a person authorised in writing by the Senior Reviewer, or a person mentioned in subsection 473JE(2), handing the document to the recipient.

Handing to a person at last residential or business address

             (4)  Another method consists of a Reviewer, a person authorised in writing by the Senior Reviewer, or a person mentioned in subsection 473JE(2), handing the document to another person who:

                     (a)  is at the last residential or business address of the recipient provided to the Immigration Assessment Authority in connection with the review; and

                     (b)  appears to live there (in the case of a residential address) or work there (in the case of a business address); and

                     (c)  appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

             (5)  Another method consists of a Reviewer or a person mentioned in subsection 473JE(2) dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by prepaid post or by other prepaid means; and

                     (c)  to:

                              (i)  the last address for service of the recipient provided to the Immigration Assessment Authority in connection with the review; or

                             (ii)  the last residential or business address of the recipient provided to the Authority in connection with the review; or

                            (iii)  if the recipient is a minor—the last address for a carer of the minor provided to the Authority.

Transmission by fax, email or other electronic means

             (6)  Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to:

                     (d)  the last fax number, email address or other electronic address, as the case may be, of the recipient provided to the Immigration Assessment Authority; or

                     (e)  if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is provided to the Authority.

Documents given to a carer

             (7)  If the Immigration Assessment Authority gives a document to a carer of a minor, the Authority is taken to have given the document to the minor. However, this does not prevent the Authority giving the minor a copy of the document.

473HC  Methods by which Immigration Assessment Authority gives documents to the Secretary

Coverage of section

             (1)  For the purposes of provisions of this Part or the regulations that:

                     (a)  require or permit the Immigration Assessment Authority to give a document to the Secretary; and

                     (b)  state that the Authority must do so by one of the methods specified in this section;

the methods are as follows.

Giving by hand

             (2)  One method consists of a Reviewer, a person authorised in writing by the Senior Reviewer or a person mentioned in subsection 473JE(2), handing the document to the Secretary or to an authorised officer.

Dispatch by post or by other means

             (3)  Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), dating the document, and then dispatching it:

                     (a)  within 3 working days (in the place of dispatch) of the date of the document; and

                     (b)  by post or by other means; and

                     (c)  to an address, notified to the Immigration Assessment Authority in writing by the Secretary, to which such documents can be dispatched.

Transmission by fax, e‑mail or other electronic means

             (4)  Another method consists of a Reviewer or a person mentioned in subsection 473JE(2), transmitting the document by:

                     (a)  fax; or

                     (b)  email; or

                     (c)  other electronic means;

to the last fax number, email address or other electronic address notified to the Authority in writing by the Secretary for the purpose.

473HD  When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority

             (1)  This section applies if the Immigration Assessment Authority gives a document to a person other than the Secretary by one of the methods specified in section 473HB (including in a case covered by section 473HA).

Giving by hand

             (2)  If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(3) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

             (3)  If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(4) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

             (4)  If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(5) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document 7 working days (in the place of that address) after the date of the document.

Transmission by fax, email or other electronic means

             (5)  If the Immigration Assessment Authority gives a document to a person by the method in subsection 473HB(6) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

             (6)  Subsection (5) applies despite sections 14, 14A and 14B of the Electronic Transactions Act 1999.

Document not given effectively

             (7)  If:

                     (a)  the Immigration Assessment Authority purports to give a document to a person in accordance with a method specified in section 473HB (including in a case covered by section 473HA) but makes an error in doing so; and

                     (b)  the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Authority had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

473HE  When the Secretary is taken to have received a document from the Immigration Assessment Authority

             (1)  This section applies if the Immigration Assessment Authority gives a document to the Secretary by one of the methods specified in section 473HC (including in a case covered by section 473HA).

Giving by hand

             (2)  If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.

Dispatch by post or by other means

             (3)  If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document 7 working days (in the place of that address) after the date of the document.

Transmission by fax, email or other electronic means

             (4)  If the Immigration Assessment Authority gives a document to the Secretary by the method in subsection 473HC(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.

             (5)  Subsection (4) applies despite sections 14, 14A and 14B of the Electronic Transactions Act 1999.

473HF  Giving documents etc. to the Immigration Assessment Authority

             (1)  If, in relation to the review of fast track reviewable decision, a person is required or permitted to give a document or thing to the Immigration Assessment Authority, the person must do so:

                     (a)  by a method set out in directions under section 473FB; or

                     (b)  if the regulations set out a method for doing so—by that method.

             (2)  Directions under section 473FB may make provision for a person to give a copy of a document, rather than the document itself, to the Immigration Assessment Authority.

473HG  Authorised recipient

             (1)  If:

                     (a)  a fast track reviewable decision in respect of a referred applicant is referred for review; and

                     (b)  the referred applicant gives the Immigration Assessment Authority written notice of the name and address of another person (the authorised recipient) authorised by the referred applicant to receive documents in connection with the review;

the Authority must give the authorised recipient, instead of the referred applicant, any document that it would otherwise have given to the referred applicant.

Note:          If the Immigration Assessment Authority gives a person a document by a method specified in section 473HB, the person is taken to have received the document at the time specified in section 473HD in respect of that method.

             (2)  If the Immigration Assessment Authority gives a document to the authorised recipient, the Authority is taken to have given the document to the referred applicant. However, this does not prevent the Authority giving the referred applicant a copy of the document.

             (3)  Subject to subsection (4), the referred applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the referred applicant’s authorised recipient.

             (4)  In addition to the referred applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

             (5)  This section does not apply to the Immigration Assessment Authority giving documents to, or communicating with, the referred applicant when the referred applicant is appearing at an interview with the Authority.

Division 8The Immigration Assessment Authority

473JA  The Immigration Assessment Authority

             (1)  The Immigration Assessment Authority is established within the Migration and Refugee Division of the Tribunal.

             (2)  The Immigration Assessment Authority consists of the following persons:

                     (a)  the President;

                    (aa)  the Division head;

                     (b)  the Senior Reviewer and other Reviewers.

             (3)  The President, the Division head, the Senior Reviewer and the other Reviewers are to exercise the powers, and perform the functions, of the Immigration Assessment Authority under this Part.

473JB  Administrative arrangements

             (1)  The President and the Division head are responsible for the overall operation and administration of the Immigration Assessment Authority and, for that purpose, either of them may issue directions or determine policies.

          (1A)  If a power or function is conferred on the President under this Part, the power may be exercised, or the function performed, by either the President or the Division head.

Example:    The Division head may exercise the President’s power to make a direction under section 473FC (Guidance decisions).

             (2)  The Senior Reviewer is to manage the Immigration Assessment Authority subject to the directions of, and in accordance with policies determined by, the President or the Division head.

473JC  Appointment of Senior Reviewer

             (1)  The President must, by written instrument, appoint an SES employee to be the Senior Reviewer.

             (2)  Before appointing a person as the Senior Reviewer, the President must consult the Minister.

473JD  Acting Senior Reviewer

                   The President may appoint a person to act as the Senior Reviewer:

                     (a)  during a vacancy in the office of Senior Reviewer, whether or not an appointment has previously been made to that office; or

                     (b)  during any period, or during all periods, when the Senior Reviewer is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office of Senior Reviewer.

473JE  Staff

             (1)  The Senior Reviewer and the other Reviewers are to be persons engaged under the Public Service Act 1999.

             (2)  The Registrar must make available officers of the Tribunal (within the meaning of the Administrative Appeals Tribunal Act 1975) to assist the Immigration Assessment Authority in the performance of its administrative functions.

473JF  Delegation

             (1)  The President may delegate, in writing, all or any of the President’s powers or functions under this Part to the Senior Reviewer.

             (2)  In exercising a power under a delegation, the Senior Reviewer must comply with any written directions of the President.

Part 8Judicial review

Division 1Privative clause

474  Decisions under Act are final

             (1)  A privative clause decision:

                     (a)  is final and conclusive; and

                     (b)  must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

                     (c)  is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

             (2)  In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

             (3)  A reference in this section to a decision includes a reference to the following:

                     (a)  granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

                     (b)  granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

                     (c)  granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

                     (d)  imposing, or refusing to remove, a condition or restriction;

                     (e)  making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

                      (f)  retaining, or refusing to deliver up, an article;

                     (g)  doing or refusing to do any other act or thing;

                     (h)  conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

                      (i)  a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

                      (j)  a failure or refusal to make a decision.

             (4)  For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

 

Decisions that are not privative clause decisions

Item

Provision

Subject matter of provision

1

section 213

Liability for the costs of removal or deportation

2

section 217

Conveyance of removees

3

section 218

Conveyance of deportees etc.

4

section 222

Orders restraining non‑citizens from disposing of property

5

section 223

Valuables of detained non‑citizens

6

section 224

Dealing with seized valuables

7

section 252

Searches of persons

8

section 259

Detention of vessels for search

9

section 260

Detention of vessels/dealing with detained vessels

10

section 261

Disposal of certain vessels

11

Division 14 of Part 2

Recovery of costs

12

section 269

Taking of securities

13

section 272

Migrant centres

14

section 273

Detention centres

15

Part 3

Migration agents registration scheme

16

Part 4

Court orders about reparation

23

Division 7 of Part 5

Part‑5 reviewable decisions: offences

28

Division 6 of Part 7

Part‑7 reviewable decisions: offences

31

regulation 5.35

Medical treatment of persons in detention

             (5)  The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.

             (6)  A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.

             (7)  To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):

                     (a)  a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);

                     (d)  a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

Division 2Jurisdiction and procedure of courts

474A  Definition of AAT Act migration decision

                   For the purposes of this Act, a decision under a provision of the Administrative Appeals Tribunal Act 1975 set out in the following table is an AAT Act migration decision, to the extent that the decision is made in relation to any of the following:

                     (a)  a review of a particular Part‑5 reviewable decision or Part‑7 reviewable decision;

                     (b)  a function of the Tribunal in relation to the exercise of its jurisdiction to review Part 5‑reviewable decisions or Part 7‑reviewable decisions;

                     (c)  a Tribunal member in the Migration and Refugee Division of the Tribunal.

 

AAT Act migration decisions

Item

Provision of the Administrative Appeals Tribunal Act 1975

Subject matter of provision

1

section 6

Appointment of members of the Tribunal

2

section 8